Hitchcock v. Lafarge Canada Inc., 2013 HRTO 769

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stanley Hitchcock

Applicant

-and-

Lafarge Canada Inc. and Christopher White

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: May 8, 2013

Citation: 2013 HRTO 769

Indexed as: Hitchcock v. Lafarge Canada Inc.

WRITTEN SUBMISSIONS

Stanley Hitchcock, Applicant

Ian A. Wilson, Counsel

Lafarge Canada Inc. and Christopher White, Respondents

Daniel R. McDonald, Counsel

Introduction

1This Application was filed on September 14, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and involves allegations of discrimination on the basis of disability in employment.

2In his Application, the applicant alleges that he was subjected to discrimination when the respondents failed to accommodate his disability-related absence, placed unreasonable requirements on him regarding the provision of medical documentation in relation to his absence, and subsequently terminated his employment on October 24, 2008. The applicant submits that the respondents required that he provide a medical certificate from his doctor supporting his absence by no later than the close of business on October 23, 2008; however, he explained to the respondents that he was not able to see his doctor until November 6, 2008.

3In their Response to the Application, the respondents assert that the applicant had a number of issues related to his performance and attendance, and he never made them aware of any issue requiring accommodation. They assert that the applicant’s past record, and his failure to provide reasonable medical evidence for his absences in accordance with the collective agreement, gave rise to the termination of his employment. The respondents also assert that the applicant could not contact them because he was incarcerated.

4This Interim Decision addresses the applicant’s Request for an Order During Proceedings (“Request”) seeking deferral or abeyance of the hearing in this Application, pending his release from custody, and the respondent’s Request seeking dismissal of the Application on the basis of delay, or, alternatively, directing the applicant to provide a detailed explanation for the basis of his alleged inability to attend at the Tribunal.

PROCEDURAL BACKGROUND

5The hearing in this matter commenced on January 26, 2012, and a second hearing date was scheduled for March 7, 2012. By correspondence dated February 21, 2012, the applicant advised that he was in custody since February 15, 2012, and, by correspondence dated February 29, 2012, the applicant advised that he would be in custody until at least March 13, 2012. He requested that the hearing be adjourned sine die. In correspondence dated March 1, 2012, the respondents submitted that the applicant’s request to adjourn sine die was premature, and opposed an open-ended request to adjourn.

6By Case Assessment Direction (“CAD”) dated March 2, 2012, the Tribunal adjourned the March 7, 2012 hearing date, but declined to adjourn the matter indefinitely. The Tribunal indicated that the parties would be contacted shortly regarding rescheduling.

7Between March 22 and May 23, 2012, the Tribunal and the parties exchanged correspondence regarding rescheduling, while the applicant remained in custody. In correspondence dated May 18, 2012, the applicant requested deferral of the hearing pending his release from custody, and referred to his May 1, 2012 correspondence wherein he indicated that it was expected that a September 2012 trial date would be set. In correspondence dated May 23, 2012, the respondents submitted that the applicant’s May 18, 2012 request was another request for an indefinite adjournment, unsupported by reasons, and ought to be denied.

8By CAD dated July 19, 2012, the Tribunal directed the applicant to deliver and file a Request, pursuant to Rule 19 of the Tribunal’s Rules of Procedure, within 14 days of the date of the CAD, if the applicant was requesting a deferral or an abeyance in this matter. The Tribunal also directed that the respondents could deliver and file a Response within a further 14 days of the delivery of the applicant’s Request, at which time the Tribunal would either determine the Request or issue further directions.

9The applicant filed a Request dated August 1, 2012, seeking deferral or abeyance of the hearing in this Application pending his release from custody, and the respondents filed a Response to the applicant’s Request, dated August 10, 2012, submitting that the applicant’s request for a further adjournment ought to be denied and the Application, as a whole, dismissed.

10In a CAD dated October 24, 2012, the Tribunal noted that the applicant indicated in his Request that a pre-trial hearing concerning his criminal charges was scheduled for August 17, 2012. In the circumstances, the Tribunal directed that the applicant provide an update of any relevant information he had concerning his availability to participate in a hearing in this Application, within 14 days, at which time the Tribunal would determine the applicant’s Request or issue further directions.

11By correspondence dated November 6, 2012, the applicant advised, among other things, that a judicial pre-trial was set for December 5, 2012, and that it was believed that “target trial dates” were set for April 2013. The applicant submitted that he very much wishes to continue with the Application when he is either released on bail, or following the disposition of his charges.

12By correspondence dated November 9, 2012, the respondents submitted that the applicant was withholding additional relevant information and asked that the Tribunal direct the applicant to provide all relevant information supportive of his request for an indefinite adjournment. The respondents also reiterated their previous submission that the Application ought to be dismissed.

13On January 22, 2013, the respondents filed a Request seeking: dismissal of the Application on the basis of delay; in the alternative, dismissal of the Application on the basis that delay in the adjudication of the Application has irredeemably prejudiced the respondents’ right to a fair hearing; and, in the further alternative, an order directing the applicant to provide a detailed explanation for the basis of his alleged inability to attend at the Tribunal, inclusive of details of when he may be able to attend, if ever, as well as the terms of any prison sentence currently preventing attendance.

14On February 5, 2013, the applicant filed a Response opposing the respondents’ Request, and indicating that he remains in custody and that no trial date has been set. The applicant also submitted that he will continue to undertake to disclose the existence of any trial date, sentence, or acquittal and release from custody.

REQUESTS

15In his Request dated August 1, 2012, the applicant seeks a deferral or abeyance of the hearing in this matter, pending his release from custody and his ability to attend at the hearing and give evidence and instruct counsel. The applicant explains that, during a bail hearing in February 2012 in which he was seeking relaxed bail conditions, his bail was instead revoked. The applicant was taken into custody pending resolution of his outstanding charges, including further charges related to an apparent breach of his bail conditions, or a bail review. The applicant indicates that he wishes to have a trial regarding his outstanding criminal charges from October 2008.

16In their Response to the applicant’s Request, the respondents submit that the applicant provides no specificity whatsoever as to the length of any deferral or adjournment and his request must, therefore, be viewed as a request for an indefinite adjournment. The respondents also submit that the applicant’s inability to attend the hearing is entirely attributable to his own actions, as he is presently incarcerated due to a breach of his bail conditions. They also refer to the applicant’s decisions in the context of the criminal proceedings, such as rejecting plea bargains and seeking new counsel, as attributing to the delay and uncertainty.

17The respondents also argue that they are prejudiced, as the events complained of arise from alleged conversations and actions dating back to 2007 and 2008. The respondents submit that, if the applicant’s request is granted, the respondent will be required to recall events which will very likely be more than at least six years in the past, and such prejudice cannot be remedied, particularly in the context of a proceeding where credibility is a central issue. The respondents also submit that, while the applicant has testified in chief, the respondents have yet to testify, and the prejudice falls disproportionately at the feet of the respondents.

18The respondents also submit, in conclusion, that the Tribunal should dismiss the Application as an abuse of process, pursuant to s. 23(1) of the Statutory Powers Procedure Act. In the alternative, the respondents submit that the applicant’s request for an adjournment ought to be denied, and that an order directing the applicant to attend for a resumption of the proceeding be made forthwith.

19In their subsequent Request dated January 22, 2013, the respondents submit that the applicant has taken no steps to bring this matter forward since the last hearing date on January 26, 2012. They also submit that the Tribunal has effectively granted the applicant an indefinite adjournment, and that the delay to date is contrary to the principles of natural justice and the respondents’ right to procedural fairness. The respondents submit that this is particularly so where, as in the instant case, the allegations at issue are premised on alleged verbal exchanges between the applicant and various employees of the organizational respondent. The respondents also submit that credibility and powers of recollection are central to this proceeding, and, as the respondents’ case has yet to begin, the burden of the delay in the form of the degradation of witnesses’ recollections falls exclusively on them.

20In his Response to the respondents’ Request, the applicant simply submits that he remains in custody and that he will continue to undertake to disclose the existence of any trial date, sentence or acquittal and release from custody. Otherwise, he submits that the respondents’ Request should be dismissed.

DECISION

21The respondents request that the Application be dismissed on the basis of delay, however, they have not argued that the Application was filed outside the time limit in s. 34 of the Code. Rather, the respondents baldly assert that there is delay contrary to principles of natural justice and procedural fairness. In my view, the respondents have not established that there is any breach of the principles of natural justice or procedural fairness that would warrant dismissing the Application. In addition, although the respondents raise concerns about the recollection of witnesses, in my view, they have not established actual prejudice sufficient to warrant dismissing the Application at this stage of the proceeding, as an abuse of process or otherwise.

22The respondents’ request that the Application be dismissed on the basis of delay is dismissed, without prejudice to the respondents’ ability to raise the issue of delay, including any prejudice arising from delay, at a later date.

23With respect to the applicant’s request, it appears that the applicant remains in custody, and there is no indication as to when he may be released. In my view, it would not be appropriate to simply grant the applicant’s request that this matter be held in abeyance pending his release from custody as it is not clear when this might occur. It has also now been over a year since the last hearing date in this matter, and the Tribunal has been unable to schedule any further hearing dates due to the uncertainty as to when the applicant may be able to attend.

24In the circumstances, I find that it is appropriate to order that this matter be held in abeyance for a further three months from the date of this Interim Decision, without prejudice to the applicant’s ability to submit a further request for abeyance for the Tribunal’s consideration, if necessary. If the Tribunal does not hear from the applicant within three months of the date of this Interim Decision, the Application may be dismissed as abandoned.

25With respect to the respondents’ alternative request that the applicant be directed to provide a detailed explanation for the basis of his alleged inability to attend at the Tribunal, inclusive of details of when he may be able to attend, I note that the applicant has indicated that he will continue to undertake to disclose the existence of any trial date, sentence or acquittal and release from custody. In the circumstances, I order that the applicant promptly advise the respondents and the Tribunal with respect to any trial date, sentence or release from custody, and his ability to attend a hearing at the Tribunal, when such information becomes available to him.

26If the applicant is not able to advise when he can attend a hearing at the Tribunal within three months of the date of this Interim Decision, the applicant may wish to propose alternate means for the hearing in this matter to proceed, such as by teleconference or videoconference, or a change of venue, for the Tribunal’s consideration, having regard to any submissions of the parties.

ORDER

27The respondents’ request that the Application be dismissed on the basis of delay is dismissed.

28This matter will be held in abeyance for a further three months from the date of this Interim Decision.

29The applicant is ordered to promptly advise the respondents and the Tribunal with respect to any trial date, sentence or release from custody, and his ability to attend a hearing at the Tribunal, when such information becomes available to him.

30If the Tribunal does not hear from the applicant within three months of the date of this Interim Decision, the Application may be dismissed as abandoned.