Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 862

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Esther del Carmen Mancebo-Munoz

Applicant

-and-

NCO Financial Services Inc.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 17, 2013

Citation: 2013 HRTO 862

Indexed as: Mancebo-Munoz v. NCO Financial Services Inc.

WRITTEN SUBMISSIONS

Esther del Carmen Mancebo-Munoz, Applicant

Self-represented

NCO Financial Services Inc, Respondent

Randy Ai, Counsel

Introduction

1This decision provides reasons for the Tribunal’s decision to grant the applicant’s request to adjourn and reschedule the hearing scheduled for May 13-15. It also sets out the conditions that are attached to the Tribunal’s decision to grant the applicant’s request.

2By e-mail dated April 24, 2013, the applicant requested an adjournment of the hearing. The applicant provided as the reason for her request the fact that she has been suffering from serious mood and anxiety disorders that cause significant and chronic impairment in her ability to carry out activities of daily living, including dealing with this Application. In support of her request she referred to the medical assessments she filed as part of her Application materials. In her e-mail she noted that she had been referred to a lawyer but did not state that she had retained this lawyer. The respondents objected to the adjournment request. By Interim Decision dated May 7, 2013, 2013 HRTO 758, I denied the applicant’s adjournment request on the basis that the applicant has failed to provide sufficient support for her adjournment request. Specifically, I noted that the applicant has failed to explain what it is about her medical condition that had changed and that would necessitate an adjournment of the hearing.

3On May 10, 2013, the applicant renewed her request. This time, the applicant provided a letter from her psychiatrist in support of her request. The letter states that the applicant’s anxiety diminishes her ability to respond to stressful circumstances and that this would explain her failure to retain a lawyer. The letter states that the applicant has retained a lawyer but that he or she is only available as of May 21, 2013.

4The respondent objected to the applicant’s adjournment request on the basis that the applicant has experienced anxiety for the past two years. The respondent submitted that the new medical note was not persuasive and that it did not state that the applicant was unable to attend the hearing. The respondent noted that the applicant previously had indicated that she was seeking to retain counsel and failed to do so. According to the respondents, she had more than a reasonable amount of time to retain counsel in advance of the hearing.

5On May 10, 2013, I granted the applicant’s request with reasons to follow. These are the reasons for my decision and the conditions that attach to this decision.

reasons for decision

6The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations and the Tribunal’s case law make clear that the Tribunal will only grant adjournment requests in “exceptional circumstances”.

7In my view, there are factors that weigh both in favour of, and against, an adjournment in this case. The Tribunal has held several times that failure to retain a lawyer in advance of a hearing, in and of itself, does not constitute an exceptional circumstance that warrants an adjournment. See, for example, Kissoon v. Canada Catering Cleaning, 2013 HRTO 356. However, on balance, I am satisfied that the letter from the applicant’s psychiatrist tips the scales in favour of granting an adjournment in this case. In particular, the letter provides an explanation for the applicant’s delay and confirms that the applicant has retained a lawyer to represent her.

8Although I granted the applicant’s adjournment request, I am concerned to minimize any prejudice to the respondent that may arise from the adjournment. I am also concerned about the consequences the adjournment will have for the Tribunal’s institutional interests. The Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”) and Rule 1.1 of the Tribunal’s Rules of Procedure (“Rules”). This duty exists not only in relation to applicants, but also in relation to respondents, who may expend significant resources responding to human rights applications, and the public, whose tax dollars fund the Tribunal.

9As the Tribunal stated in Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

10For these reasons, I find it appropriate to attach the conditions set out below to this adjournment decision.

Other Matters

11The Tribunal has received the applicant’s e-mail dated May 15, 2013 indicating that she is willing to take part in a mediation-adjudication on the day of the hearing. In her e-mail the applicant repeats similar accusations made against the respondent in prior correspondence. It appears to me that these allegations are unfounded and in any event do not relate to any pre-hearing matters currently before the Tribunal. The applicant is directed to refrain from filing correspondence with the Tribunal which contains any further similar accusations against the respondent unless they relate to an alleged breach of the Tribunal’s Rules or case law. Any other views about the respondent’s conduct may be raised as a preliminary issue at the hearing if at all.

order

12Accordingly, the Tribunal orders as follows:

a. The hearing scheduled for May 13-15, 2013 is adjourned.

b. Within 7 days of the date of this Interim Decision, the applicant’s counsel shall confirm with the Tribunal and the respondent that he or she has been retained to represent the applicant. He or she shall also provide his or her full contact information to the Tribunal and the respondent.

c. Within 21 days of this Interim Decision, the applicant and/or her counsel shall file with the Tribunal, with a copy to the respondent, a list of witnesses who the applicant expects to give evidence at the hearing as well as a detailed statement of the evidence each witness is expected to provide. The applicant and/or her counsel must include a detailed statement of the evidence that the applicant will provide if she herself intends to testify at the hearing.

d. If the applicant fails to comply with paragraph c) above, the Tribunal may dismiss the Application.