Lozano v. Rabovsky, 2013 HRTO 634

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angel Lozano

Applicant

-and-

Neil Rabovsky

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: April 16, 2013

Citation: 2013 HRTO 634

Indexed as: Lozano v. Rabovsky

WRITTEN SUBMISSIONS

Angel Lozano, Applicant

Self-represented

Neil Rabovsky, Respondent

Self-represented

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 employment because of disability and reprisal.

2The Application was originally scheduled for a hearing on September 17, 2012. The hearing date was adjourned when the Tribunal discovered the applicant had not received notice of the hearing.

3By Case Assessment Direction dated September 14, 2012 (the “CAD”), the Tribunal advised the parties that a new hearing date would be scheduled and further advised them to comply with their pre-hearing disclosure obligations set out in the Notice of Confirmation of Hearing that would be sent following the CAD. The Tribunal also advised the parties that the respondent’s request to dismiss the Application on the basis that the applicant signed a full and final release with respect to the same matter would be dealt with at the hearing.

4The hearing was rescheduled to May 1, 2013 by Notice of Confirmation of Hearing dated December 13, 2012. The Notice of Confirmation of Hearing provided the following directions to the parties:

Unless otherwise directed by the HRTO, not later than March 18, 2013 you must deliver to every other party and file with the HRTO:

• a list of all documents you intend to rely on at the hearing;

• a copy of each document on that list for the HRTO;

• a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;

• a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;

• a statement summarizing the expected evidence of each witness;

• where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;

• the Statement of Delivery of the Rule 16.2 list and documents on the other parties.

5Neither party has complied with their pre-hearing disclosure obligations.

6On March 22, 2013, the applicant requested an adjournment of the hearing until July 2013 because of his health condition. The respondent objects to the adjournment and asks the Tribunal to deal with his request to dismiss the Application.

7On April 8, 2013, the Tribunal requested medical information from the applicant concerning the medical condition that prevents him from attending the hearing on May 1, 2013. The applicant was directed to produce this information by April 15, 2013. He has failed to do so. On April 9, 2013, the applicant advised the Tribunal that he is not in Canada and he hopes to be better in July 2013 to attend the hearing.

ADJOURNMENT

8The Tribunal will only grant an adjournment in exceptional circumstances. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why exceptional circumstances are required before an adjournment is granted:

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.

9The applicant has provided no medical information as to why his health condition prevents him from attending the hearing on May 1, 2013. As such, there is no basis upon which to find the exceptional circumstances test has been met. For this reason, the applicant’s adjournment request is denied.

10The hearing is scheduled for May 1, 2013. It appears from the applicant’s correspondence that he will not be attending the hearing because he is out of the country. If the applicant intends to attend the hearing, he must advise the Tribunal by April 19, 2013. If the applicant fails to advise the Tribunal, the Tribunal will presume that he does not intend to attend the hearing and the Application will be dismissed as abandoned.

11If the applicant advises the Tribunal that he will be attending the hearing on May 1, 2013, both parties must comply with their pre-hearing obligations set out below.

CASE MANAGEMENT

12The parties have not complied with their obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. There are serious consequences for the case if this step is not taken, set out at the end of this Interim Decision.

13In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at para. 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

14The Tribunal directs the applicant and the respondent to comply with the following directions:

a. The applicant is directed to immediately file the materials required under Rules 16 and 17, summarized in paragraph 4, by April 26, 2013. If the applicant intends to limit his evidence to the issues and allegations made in the Application, he is to advise the respondent and the Tribunal by April 26, 2013 and the Application may serve as his will-say statement.

b. The respondent is directed to file the materials required under Rules 16 and 17, summarized in paragraph 4, by April 26, 2013.

15In the event that either party does not comply with the Directions in this Interim Decision, this may limit the ability of a party to call a witness or rely on a document during the course of the hearing in accordance with the Tribunal’s Rules. If the applicant does not comply with the directions in this Interim Decision then the Tribunal may deem the applicant to have abandoned the Application.