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: February 9, 2015
Citation: 2015 HRTO 180
Indexed as: M.H. v. Waterloo Region District School Board
WRITTEN SUBMISSIONS
M.H. by his Litigation Guardian Y.S., Applicant
Y.S., Representative
Waterloo Region District School Board, Sandra Black, Michael Frey, and Maureen Perlanski, Respondent
Nadya Tymochenko, Counsel
Introduction
1This Application is scheduled to be heard in Toronto on February 18 and 19, 2015, from 1:00 PM to 5:00 PM. The hours of the hearing are pursuant to the applicant’s request for accommodation.
2On February 1, 2015, the Applicant requested an adjournment of the hearing dates. Attached to the February 1, 2015 request to adjourn was a doctor’s note and the applicant indicated that the request was “on the basis of the attachment”. The doctor’s note, dated February 1, 2015, refers to the applicant and states “This patient needs to be off work February 1-21, 2015 for medical reasons”.
3This matter was previously scheduled to be heard on November 19 and 20, 2014, from 1 PM to 5 PM, with hours scheduled pursuant to the applicant’s request for accommodation. On November 9, 2014, the applicant requested an adjournment of the hearing dates, stating that her request was being made due to “personal business” and she requested that the matter not be rescheduled until the end of April 2015. The request was initially denied in an Interim Decision, M.H. v. Waterloo District School Board, 2014 HRTO 1659, as the applicant had identified no exceptional circumstances. The applicant subsequently renewed her request and provided a doctor’s note from a walk-in clinic, indicating that she had been seen at the clinic on November 15, 2014. The November 15, 2014 note stated that she was “unable to work/study for medical reasons” from November 15, 2014 to November 22, 2014.
4The respondents objected to her request, noted the history of the request and its renewal and submitted that there was reason to suspect the sufficiency of the request to adjourn.
5In an Interim Decision, M.H. v. Waterloo Region District School Board, 2014 HRTO 1667, dated November 18, 2014, the Tribunal stated that the note from the walk-in clinic was “very vague and not helpful to understanding why the applicant is unable to attend and participate in the hearing scheduled for November 19 and 20, 2014”. Nevertheless, the Tribunal granted the adjournment. In that Interim Decision, however, the Tribunal stated that if the applicant made any future Request for Adjournment for medical reasons, she would be required to provide to the Tribunal, and to copy to the respondents, medical documentation from her medical practitioner explicitly stating why she is unable to attend at the scheduled hearing dates, how she may be accommodated if at all, and when she will be able to attend hearing dates.
6The respondents object to the February 1, 2015 Request for an Adjournment. They submit that the request to adjourn should be denied because: the applicant has failed to provide the information required by the Tribunal’s Interim Decision at M.H. v. Waterloo Region District School Board, 2014 HRTO 1667; the request, being made only 18 days prior to the commencement of the hearing, impacts the Tribunal’s ability to schedule timely hearings; the request is not on consent of the parties; they submit that the applicant’s needs have already been accommodated with a first adjournment and with an alteration to the hours of the hearing; on both occasions where she has requested an adjournment, the applicant was anticipated to recover from her medical issue two days after the hearing dates scheduled and; a further adjournment prejudices the respondents. The respondents also note that the applicant has failed to comply with her obligations pursuant to Rule 17 of the Tribunal’s Rules of Procedure and has not provided adequate witness lists and witness statements. Finally, they request that if an adjournment is granted, a hearing date be converted to a summary hearing.
7The applicant sent an email to the respondents and to the Tribunal on February 6, 2015, stating that the doctor’s note means that she is too sick to “attend everything including work”. She stated that it was “not necessary for the doctor to mention home, court, tv, family, shopping”.
8Notice of Confirmation of Hearing in this matter was sent to the parties on November 28, 2014. Included in that notice was direction with respect to dates for disclosure pursuant to the Tribunal’s Rules of Procedure and direction regarding requests for adjournments. It noted that if a party seeks an adjournment, they are to do so within 14 days of the Notice of Confirmation of Hearing. It advised the parties that a hearing would only be adjourned or rescheduled in exceptional circumstances.
DECISION
9The Practice Direction on requests to adjourn or reschedule reads as follows:
The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a 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.
Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.
The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.
10In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:
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.
11The applicant has not disclosed any extraordinary circumstances to support the request for an adjournment. The request was filed well in excess of the time frames stated in the above-noted Notice of Hearing and Practice Direction. Further, it fails to comply with the requirements stated in M.H. v. Waterloo Region District School Board, 2014 HRTO 1667, and in conclusion fails to provide a medical basis for her request. In these circumstances, I am not satisfied that the applicant has provided a reason that would justify granting an adjournment. I do not find that there are exceptional circumstances that warrant adjournment of this hearing, and the request to adjourn the scheduled hearing days is denied. The hearing will proceed on the dates scheduled.
12Further, the applicant is directed to comply with her obligations pursuant to Rule 17 of the Tribunal’s Rules of Procedure. Should the applicant fail to comply with her obligations pursuant to Rule 17 of the Tribunal’s Rules of Procedure by February 16, 2015, the applicant may be prevented from presenting testimony from her witnesses according to Rule 17.4.
13I am not seized.
Dated at Toronto, this 9th day of February, 2015.
“Signed by”
________________________________
Maureen Doyle
Vice-chair