Mackin v. Houselink Community Homes, 2013 HRTO 541

Human Rights Tribunal of Ontario

B E T W E E N:

Kelly Mackin Applicant

-and-

Houselink Community Homes Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: April 3, 2013 Citation: 2013 HRTO 541 Indexed as: Mackin v. Houselink Community Homes

WRITTEN SUBMISSIONS

Kelly Mackin, Applicant Self-represented

Houselink Community Home, Respondent Elizabeth Forster, Counsel

1By Case Assessment Direction (“CAD”) dated January 17, 2013, the Tribunal directed on its own initiative that the Application proceed by way of Summary Hearing. At para. 5 of the CAD, the Tribunal stated:

The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent’s actions and the grounds cited. No witnesses will give evidence during the summary hearing.

2A Notice of Summary Hearing, dated February 6, 2013, was issued to the parties scheduling a Summary Hearing, by conference call, on April 10, 2013. The applicant is seeking an adjournment of the Summary Hearing and the respondent opposes her request.

3In her email dated March 14, 2013 requesting an adjournment, the applicant wrote that she finds the prospect of participating in the summary hearing by herself to be stressful and overwhelming. She contacted the Human Rights Legal Support Centre, but was advised they have a conflict, and then contacted a legal clinic which will represent her but it requires more than three months to prepare. She identified witnesses whom she wants to call during the Summary Hearing and also advised that she has been dealing with additional stress due to the ill health of her father.

4The Tribunal emailed the applicant, copying the respondent, on March 18 to clarify that witnesses are not required for the Summary Hearing and as such whether she was still requesting an adjournment. The Tribunal also requested the applicant to provide more details about why she could not participate if the Summary Hearing if she was also requesting an adjournment due to her father’s ill health.

5In her email response to the Tribunal dated March 21, the applicant stated that she had not yet retained a legal clinic as she was still in the process of gathering her evidence. She stated that her father is in a different province and that she may have to go to him at any time. She re-iterated her feelings of stress and advised that she could provide medical documentation if needed, although she did not submit any medical documentation.

6The respondent opposes the applicant’s adjournment request, submitting that her request is outside the time frame for an adjournment request and the reasons for her request are not extraordinary to grant the adjournment. She has had sufficient time to retain counsel. The respondent is sympathetic to her father’s medical condition, but notes that the applicant has not indicated that her attendance is required elsewhere on April 10, 2013.

7The applicant’s request for an adjournment is denied.

8As noted in the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournment, requests for adjournment are a significant impediment to fair and timely access to justice. The Tribunal will grant adjournments only in exceptional circumstances where a request comes more than 14 days after the receipt of the Notice of Hearing, regardless of whether the parties consent.

9Applicants are not required to have a lawyer represent them during the Tribunal’s proceedings and many applicants are self-represented. The applicant has not retained counsel to represent her and in any event the 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.

10Based upon the information that the applicant has provided to date with respect to her father’s medical condition, I find that it is not, at this point, an exceptional circumstance which would warrant an adjournment of the Summary Hearing. Of course, if the applicant’s father’s medical condition changes such that the applicant is required to be with him, an adjournment would very likely be given.

11The Tribunal has granted adjournments where a party’s own medical condition, or that of their representative, prevents them from participating in the hearing: Butcher v. Ontario (Health and Long Term Care), 2013 HRTO 376. The Tribunal’s Practice Direction also recognizes that this situation would constitute an exceptional circumstance.

12The applicant has not submitted any medical documentation confirming that her medical condition prevents her from participating in the hearing. Again, if such documentation is submitted, and the applicant requests an adjournment on this basis, then her request to adjourn will be re-visited.

13As I find that the reasons upon which the applicant has based her adjournment request do not constitute exceptional circumstances, her adjournment request is denied and the Summary Hearing will proceed as scheduled.