HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joel Shuster
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Shuster v. Ontario (Attorney General)
WRITTEN SUBMISSIONS
Joel Shuster, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Respondent
Judith Parker, Counsel
Introduction
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 services because of disability.
2This matter is scheduled for hearing in Toronto on April 15, 2013.
3This Interim Decision deals with the following issues:
a. The applicant’s Request for an adjournment of the hearing; and
b. Some Hearing Management Issues.
The Request to Adjourn
4On March 7, 2013, the applicant requested an adjournment of the hearing because, he states that he is out of the country until April 12, 2013, and will not be in a position to review the respondent’s materials. The applicant also states that the Human Rights Legal Support Centre is unable to meet with the applicant in advance of the hearing and that he is seeking its assistance.
5The respondent opposes the Request to adjourn the hearing on the basis that the applicant has had more than ample time to retain legal assistance and that there is no basis for the adjournment.
6The Tribunal’s Practice Direction on requests to adjourn or reschedule reads as follows:
The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing, described above. 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.
5In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:
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 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 days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
6The applicant has not demonstrated any exceptional reasons for the requested adjournment. This Application is with respect to events that occurred almost two years ago. I find that the applicant had ample time to obtain legal representation had he exercised some diligence. I also find that the applicant has time to prepare for the scheduled hearing, especially since he has the majority of the documents to be relied upon by the respondent. As there are no exceptional circumstances that warrant the adjournment, the Tribunal denies the adjournment request. Since the Tribunal has dismissed the adjournment request it is not necessary to deal with the alternative Requests made by the respondent.
Hearing Management Issues
7The respondent has argued that this Application should be dismissed without a full hearing pursuant to s. 45.1 of the Code, which reads as follows: “The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application”. The parties should also be prepared to make submissions at the hearing on the issue of whether it is an abuse of process and/or a collateral attack on the decision rendered by the Court on October 2, 2010 to permit this Application to proceed. The parties may wish to refer to the Supreme Court of Canada’s decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, and the Tribunal’s decision in Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. The parties must be prepared to address this issue at the hearing.
8In light of the issue raised by the respondent, the parties should also be prepared to make submissions on the issue of whether the Application should be dismissed on the basis that it has no reasonable prospect of success during the hearing. The parties’ attention is directed to the discussion of this issue in Dabic v. Windsor Police Service, 2010 HRTO 1994, and Pellerin v. Conseil scolaire de district catholique Centre-sud, 2011 HRTO 1777. At the hearing the applicant should be prepared to testify, if directed, and to explain how the respondent has breached his Code rights.
ORDER
9The Tribunal Orders as follows:
a. The applicant’s Request to adjourn is denied;
b. The parties should be prepared to address the preliminary issues identified in this Interim Decision;
c. The applicant should be prepared to testify on the first day of hearing; and
d. Given the numerous issues to be canvassed on the first date, the respondent will not be asked to start its case.
Dated at Toronto, this 12^th^ day of March, 2013.
“Signed by”
Geneviève Debané
Vice-chair