M.H. v. Waterloo Region District School Board, 2014 HRTO 1667

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.H. by his Litigation Guardian Y.S.

Applicant

-and-

Waterloo Region District School Board, Sandra Black,

Michael Frey and Maureen Perlanski

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: November 18, 2014

Citation: 2014 HRTO 1667

Indexed as: M.H. v. Waterloo Region District School Board

WRITTEN SUBMISSIONS

M.H., Applicant

Y.S., Litigation Guardian

Waterloo Region District School Board, Sandra Black, Michael Frey and Maureen Perlanski, Respondents

Nadya Tymochenko, Counsel

1This Application is scheduled to be heard in Toronto on November 19 and 20, 2014.

2On Sunday, November 9, 2014, the applicant’s Litigation Guardian wrote to the Tribunal, requesting an adjournment due to “personal business in Nov, Dec until the end of April 2015”, and asking if it is possible to set a hearing date in May 2015.

3The respondents responded to the applicant’s Litigation Guardian’s Request on Wednesday, November 12, 2014, indicating that they objected to the Request.

4On Friday, November 14, 2014, the Tribunal issued an Interim Decision, 2014 HRTO 1659, denying the request for an adjournment, noting the late date of the Request and finding that the applicant had not provided a reason that constituted exceptional circumstances justifying an adjournment.

5On Monday, November 17, 2014, the applicant’s Litigation Guardian wrote again to the Tribunal, re-stating her Request for an adjournment and stating that she is too ill to attend the scheduled hearing dates. She also states that her witness is unavailable and that she has to “look after her father-in-law”.

6In essence, the applicant’s Litigation Guardian states new reasons for her request for an adjournment. As stated in the above-noted Interim Decision, the applicant’s Litigation Guardian has had notice of this hearing since May 24, 2014. Without more, the newly announced unavailability of a witness and other personal commitments do not amount to exceptional circumstances warranting an adjournment.

7Also on Monday, November 17, 2014, the applicant’s Litigation Guardian provided a note dated November 15, 2014 from a walk-in clinic, indicating that she had been seen at the clinic on November 15, 2014, and that she was “unable to work/study for medical reasons” from November 15, 2014 to November 22, 2014.

8In submissions of today’s date, the respondents oppose the applicant’s Litigation Guardian’s request for an adjournment, noting that the doctor’s note is dated the day after the Interim Decision denying the Request for an adjournment, it did not identify the nature of the applicant’s Litigation Guardian’s illness, nor did it indicate how the doctor knew that she would continue to be ill for a further seven days, being two days following the currently scheduled hearing. The respondents submit that given the timing of the applicant’s Litigation Guardian’s illness, its apparent duration and the doctor’s failure to identify the illness, there is reason to suspect the sufficiency of the applicant’s Litigation Guardian’s request for an adjournment on the basis of illness. They also note that she has stated other, non-medical reasons for her request, and that she seeks an adjournment to May, 2015. The Respondents submit that as, according to the doctor’s note, the applicant’s Litigation Guardian’s illness is expected to resolve in November, the hearing should be rescheduled at the Tribunal’s earliest opportunity in December or January.

9The applicant’s Litigation Guardian has now responded to the respondents’ submissions, stating that “the registrar and anyone is free to call the doctor”.

10The medical documentation provided by the applicant’s Litigation Guardian is very vague and not helpful to understanding why the applicant is unable to attend at and participate in the hearing scheduled for November 19 and 20, 2014. At this time, however, the Tribunal will accept the documentation as establishing that the applicant’s Litigation Guardian is unable to attend the scheduled hearing dates.

11As noted by the respondents, the medical documentation indicates that the medical basis for the applicant’s Litigation Guardian’s inability to attend the hearing is not expected to last beyond November 22, 2014. Accordingly, the parties are directed to advise the Tribunal no later than November 25, 2014, which of the following dates in February, 2015, are available to them: February 2, 9, 10, 11, 12, 17, 18, 19, 20, 23, 24, 25, 26 and 27. Should the parties fail to provide this information, the hearing may be scheduled peremptory on the parties.

12Further, though the applicant’s Litigation Guardian now indicates she has a witness she intends to present at the hearing, she has not complied with her obligation to provide a witness list and summary of the expected evidence of each witness, in accordance with Rule 17 of the Tribunal’s Rules of Procedure. The applicant’s Litigation Guardian is directed to provide this information to the respondents and file it with the Tribunal no later than November 25, 2014.

13Should the applicant’s Litigation Guardian make any future Request for Adjournment for medical reasons, she is required to provide to the Tribunal, and to copy to the respondents, medical documentation from her medical practitioner explicitly stating why she is unable for medical reasons to attend at the scheduled hearing dates, how she may be accommodated if at all, and indicating when she will be able to attend hearing dates. Though the applicant’s Litigation Guardian indicates that the Registrar is “free to call the doctor”, it is her responsibility to provide any information upon which she would seek to rely.

ORDERS

14The Tribunal makes the following orders:

1. The hearing dates scheduled for November 19 and 20, 2014, are adjourned;

2. The parties are to advise the Tribunal by November 25, 2014, which of the following dates in February, 2015 are available to them: February 2, 9, 10, 11, 12, 17, 18, 19, 20, 23, 24, 25, 26 and 27;

3. The applicant’s Litigation Guardian is to provide to the respondents and file with the Tribunal a list of her witnesses and summary of the expected evidence of each witness, by November 25, 2014.

15I am not seized.