Rajiv Sharma v. The Corporation of the City of Waterloo, Andrew Cooper and Pat Lago, 2015 HRTO 1289

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rajiv Sharma Applicant

-and-

The Corporation of the City of Waterloo, Andrew Cooper and Pat Lago Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: September 29, 2015 Citation: 2015 HRTO 1289 Indexed as: Sharma v. Waterloo (City)

1These are two Applications alleging discrimination with respect to services by the respondents contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The first Application (2014-17865-I) was filed on June 4, 2014, and alleges discrimination because of race, colour, ancestry and ethnic origin. The second Application (2014-19552-I) alleges reprisal and was filed on December 4, 2014, and amended on April 9, 2015.

2These Applications are scheduled to proceed to a hearing on October 1 and 2, 2015.

3The purpose of this Interim Decision is to address the applicant’s request for an adjournment of the scheduled hearing dates, to which the respondents consent.

4As stated in the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

5Accordingly, the fact that the parties consent to the adjournment of the hearing is not determinative as to whether this Tribunal will grant an adjournment. The issue for me to consider is whether there are extraordinary or exceptional circumstances that justify adjourning the hearing in this matter. In my view, no such extraordinary or exceptional circumstances exist in the circumstances before me.

6The Notice of Hearing for the first Application was issued on April 21, 2015, setting October 1 and 2, 2015 as the dates for the hearing. The issuance of the Notice of Hearing triggered the parties’ obligation under the Tribunal’s Rules to make disclosure to each other of all documents in their possession that are arguably relevant to the issues raised in the first Application within 21 days, or by May 12, 2015.

7By Interim Decision dated July 30, 2015 (2015 HRTO 1020), I consolidated the first Application with the second Application and directed that both Applications would proceed to hearing on October 1 and 2, 2015. As a Notice of Hearing has not yet been issued for the second Application, I established a deadline of August 21, 2015 for the parties to exchange all further documents in their possession that are arguably relevant to the issues raised in the second Application. I also established a deadline of September 11, 2015 for the parties to file their witness statements and the documents they intended to rely upon for the hearing.

8By e-mail correspondence dated September 24, 2015, applicant’s counsel advised the Tribunal that on September 17, 2015, he had requested further disclosure from the respondents of a “list of properties which were granted license during the period July 1, 2012 until August 15, 2013 and whether they were required to have the confined space of 60/40”. Counsel states that his request was modified somewhat after exchanges between counsels. He states that at that time, it was not clear whether such documents existed for that time period, but the respondent City’s IT person would be looking into the issue on Monday, September 27, 2015. Applicant’s counsel raised the prospect of requiring an adjournment of the hearing dates, depending upon the City’s ability to gather the requested materials and have them reviewed.

9By further e-mail correspondence dated September 28, 2015, applicant’s counsel wrote to advise the Tribunal that he had been advised by respondent counsel that City staff had confirmed that there are documents which fall within the period being sought, and that require further scrutiny. He states that respondent counsel advised that he would need additional time, which would likely be two weeks, to examine the records pertinent to the applicant’s request. Accordingly, applicant’s counsel requested that the currently scheduled hearing dates be adjourned. He also made a request on behalf of respondent counsel that any new hearing dates be scheduled before December 31, 2015, as one of the respondents’ material witnesses would likely be retiring and not available after December 31, 2015.

10This was followed by e-mail correspondence from respondent counsel stating that he agreed that an adjournment of the hearing is necessary to allow time for the further production of documents.

11With respect, I disagree for several reasons. First, to the extent that the documents requested may be arguably relevant to an issue raised in this proceeding, such issue would have been arguably relevant to an issue raised in the first Application, given the nature of the request and the time period for which the documents were requested. The respondents were under an obligation to disclose of all documents in their possession that are arguably relevant to the issues raised in the first Application by May 12, 2015. Accordingly, any failure to disclose the requested documents ought to have been apparent to the applicant and his counsel over five months ago, and yet no timely steps were taken to request these documents from the respondents or pursue the matter before this Tribunal until September 17, 2015. In my view, the delay by the applicant and his counsel in making a request for these documents is not an extraordinary or exceptional circumstance that justifies an adjournment of these long-scheduled hearing dates.

12Second, while I appreciate that the requested documents may potentially be arguably relevant to an issue raised in this proceeding; this does not mean that the hearing in its entirety cannot proceed in the absence of production of these documents. The requested documents do not relate to matters that are or would have been known to the applicant. These are internal City documents. Accordingly, these documents are not matters about which the applicant is capable of giving evidence. The same applies to the applicant’s witness. Accordingly, there is no reason that the hearing could not proceed to hear the evidence of the applicant and his witness, including cross-examination. The respondents also have indicated that they intend to call five witnesses. If the evidence of the applicant and his witness is completed in the first two hearing days, we certainly could proceed to hear from at least some of the respondents’ witnesses, not all of whom would be aware of or need to give evidence regarding the requested documents. Further, to the extent that the requested documents, once produced, do give rise to matters about which the applicant or his witness, or any of the respondents’ witnesses, may need to testify, this could be addressed at a later stage of the hearing process.

13Third, if the hearing were to be adjourned, there is no prospect of the hearing being re-scheduled prior to December 31, 2015. The Tribunal schedules hearings over six months in advance. At this point, if the hearing were to be adjourned, this matter would not be re-scheduled for the commencement of the hearing until at least sometime in April, 2016.

14In my view, these are not the kind of extraordinary and exceptional circumstances that justify an adjournment of the hearing. Accordingly, the parties’ request for an adjournment is denied, and the hearing will proceed as scheduled on October 1 and 2, 2015.

15The respondents are directed to make every reasonable effort to expedite the review and production of the documents requested by the applicant as soon as possible, and if possible, prior to the commencement of the hearing on October 1, 2015.

ORDER

16For the foregoing reasons, I hereby make the following order:

a. The parties’ request for an adjournment is denied, and the hearing will proceed as scheduled on October 1 and 2, 2015; and

b. The respondents are directed to make every reasonable effort to expedite the review and production of the documents requested by the applicant as soon as possible, and if possible, prior to the commencement of the hearing on October 1, 2015.