HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Altus Lewis
Applicant
-and-
Toronto Transit Commission
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Date: March 18, 2013
Citation: 2013 HRTO 453
Indexed as: Lewis v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Altus Lewis, Applicant
Self-represented
Toronto Transit Commission, Respondent
Daryn Jeffries, Counsel
Introduction
1The purpose of this Interim Decision is to address the applicant’s requests for an adjournment of his hearing scheduled for April 22 to 24, 2013, and for an extension to the deadlines for the production of documents and the filing of hearing documents with the Tribunal.
2The applicant made his requests in an email to the Tribunal dated March 10, 2013. The applicant submits that he has had difficulty in preparing his case given the death of his counsel who he states had a deep understanding of his case. The applicant submits he has had and continues to have difficulty retrieving documents related to his Application from his former counsel’s office. The applicant submits that following a preliminary hearing on January 25, 2013 in which he represented himself he determined that he does wish to be represented by counsel. The applicant submits that he has subsequently conversed with a counsel he wishes to retain but that this counsel is currently unavailable given a busy schedule but has indicated that he would be available in September or October 2013. The applicant submits that a recent discriminatory incident in his workplace has also affected his ability to prepare for his hearing.
3The applicant requests that the current deadlines for the exchange of arguably relevant documents between the parties and the filing of hearing documents and witness information be extended given his adjournment request.
4In a letter dated March 14, 2013 the respondent indicated that it does not oppose the applicant’s request for an adjournment and to extend the deadlines for the production of documents and the filing of documents with the Tribunal as long as any future hearing days are scheduled in consultation with the parties’ availability.
5It is relevant to note that the Application contains a broad range of allegations extending over a number of years. The Tribunal held a preliminary hearing on January 25, 2013 to consider whether all or part of the Application should be dismissed for delay or because of no reasonable prospect of success. Following this hearing the Tribunal issued an Interim Decision on February 28, 2013, making extensive determinations as to which of the applicant’s allegations would proceed.
DECISION
6The applicant’s request to adjourn the hearing was made more than 14 days after the Hearing Notice was issued to the parties. The Tribunal’s approach to late adjournment requests was set out in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4:
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 [now 14 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 those broader interests by requiring that a party advise within five days [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
7The Tribunal has repeatedly held that a party’s decision to retain counsel after a hearing has been scheduled is not an “exceptional circumstance” justifying an adjournment including when counsel is unavailable or unprepared: Wilson v. York (Regional Municipality), 2009 HRTO 2020, and Schenk v. OSAD, 2010 HRTO 446. Nor has the decision to change counsel been generally recognized as an exceptional circumstance justifying an adjournment: Khan v. CCSI COMPUCOM Systems, 2009 HRTO 1697 and Leone v. Solie, 2010 HRTO 855.
8However, I do find the applicant’s situation is different. I find that the death of the applicant’s counsel is an unusual and complicating circumstance- an exceptional circumstance- that leads me to grant the applicant’s postponement request. In my view no longer having his counsel available contributed to the applicant’s decision to represent himself at a preliminary hearing in January 2013 which in turn contributed to the applicant’s subsequent decision that he wanted to be represented by counsel, counsel that he would have to find and retain. It appears the applicant was unable to retain counsel in the relatively short time available to him. I am prepared to find this sequence of events to be exceptional. I find the further difficulties the applicant has had in obtaining needed documents from his former’ counsel’s office to be a further factor in favour of granting an adjournment as is the fact that the respondent did not object to an adjournment. I do not find the contention that the applicant has experienced a further alleged discriminatory act to be a factor in favour of granting an adjournment. I am satisfied under the circumstances that an adjournment in this instance would be fair and just.
9The hearing will not be rescheduled in September or October 2013 as requested but within 12 weeks of the adjourned hearing dates. Scheduling within 12 weeks of an adjourned hearing date is the Tribunal’s practice as set out in the Tribunal Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. Timely rescheduling supports the Tribunal’s commitment to resolving applications expeditiously.
10The deadline for the parties to exchange all arguably relevant documents will be extended until on or before April 18, 2013. The parties will deliver and file the documents upon which they wish to rely on at the hearing together with a list of their proposed witnesses and a detailed summary of each witnesses expected evidence on or before May 9, 2013.
11The April 18, 2013 and May 9, 2013 deadlines as well as the timing of the rescheduled hearing will require the applicant to resolve his representation in a timely manner. Any retained counsel will be expected to meet the deadlines for the delivery and filing of documents and be available on the scheduled hearing dates.
12In summary:
The hearing scheduled for April 24 to 26, 2013 is adjourned. It will be rescheduled within 12 weeks of April 26, 2013. The parties may confer about available hearing dates and communicate agreed upon available dates to the Tribunal. Otherwise, the Tribunal will proceed to schedule hearing dates without the input of the parties.
The parties will exchange all arguably relevant documents on or before April 18, 2013.
The parties will deliver and file the documents upon which they wish to rely on at the hearing together with a list of their proposed witnesses and a detailed summary of each witnesses expected evidence on or before May 9, 2013.
Dated at Toronto, this 18^th^ day of March, 2013.
”signed by”
Eric Whist
Vice-chair