Waterman v. Toronto Police Services Board, 2016 HRTO 636

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jan Waterman

Applicant

-and-

The Chief of Police and Toronto Police Services Board, Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Vanier Centre For Women)

Respondents

-and-

Ontario Human Rights Commission

Intervenor

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: May 11, 2016

Citation: 2016 HRTO 636

Indexed as: Waterman v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Jan Waterman, Applicant

Khizer Anwar, Counsel

The Chief of Police and Toronto Police Services Board, Respondents

Antonella Ceddia, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Vanier Centre for Women), Respondents

Jordana Joseph, Counsel

Ontario Human Rights Commission, Intervenor

Reema Khawja and Insiya Essajee, Counsel

Introduction

1A hearing in this matter is scheduled for May 24 to 27, 2016.

2A case management conference call was scheduled for May 2, 2016. Neither the applicant nor his legal counsel attended the case management conference call.

3On May 3, 2016, the Ministry of Community Safety and Correctional Services (the "Ministry") provided the Tribunal with a copy of email correspondence that she had forwarded to the applicant's legal counsel requesting copies of the clinical notes and records for the applicant from 2009 to present. The request for clinical notes was made to the applicant's legal counsel on April 18, 2016. Ministry counsel was advised by the applicant's legal counsel that she did not have the clinical notes in her possession and as such, could not provide them.

4On May 6, 2016, the applicant's legal counsel advised the Tribunal and the parties that she had been discharged by the applicant.

5On May 9, 2016, the applicant's new legal counsel advised the Tribunal and the parties that he had been retained and requested an adjournment of the May hearing dates.

6The Ministry does not oppose the adjournment request. It has suggested that some of the scheduled hearing time could be used for the purpose of trying to resolve the Application. The Toronto Police Services Board and the Chief of Police (the "TPSB") do not take a position on the adjournment request. They have advised that their next availability to attend a hearing is November 21 to 30, 2016. The Ontario Human Rights Commission (the "Commission") has suggested that its expert, scheduled to give evidence on May 27, 2016, could testify, provided the Commission has the right to recall the expert following the applicant's evidence. The Commission has advised that its expert is relocating and will have more limited availability to attend a rescheduled hearing. The Ministry and the TPSB do not agree with the suggestion that the Commission's expert testifies before the applicant, with a right of recall.

Decision

7The Tribunal's Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states, in part:

The HRTO discourages requests for adjournment 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.

8In addition, on the specific issue of unavailability of counsel, in Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 at paragraph 6, the Tribunal held that the unavailability of counsel is not an extraordinary circumstance justifying an adjournment:

The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for an adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled…

9It is the Tribunal's expectation that parties retain counsel available to attend scheduled hearing dates. In this case, this is second adjournment request by the applicant: the first hearing was scheduled for November 2 and 3, 2015. This Application was filed on December 16, 2013 and there has been significant delay in hearing this matter. A further adjournment will result in more delay given the scheduling limitations of the parties and the Tribunal. Further, the applicant's new legal counsel is the third lawyer representing the applicant on this matter. While the applicant has the right to have counsel of his choice represent him, he must ensure that when he terminates counsel, new counsel is available to attend the scheduled hearing. It is unfair to the other parties in this case to adjourn the hearing at the last minute. It is also unfair to the parties in other cases who are awaiting hearing dates from the Tribunal because a late adjournment results in the loss of valuable hearing time. Finally, the Tribunal's jurisprudence is clear that the fact that legal counsel is unavailable to attend a hearing does not constitute an exceptional circumstance upon which to grant an adjournment.

10For these reasons, the adjournment request is denied.

order

11The applicant's adjournment request is denied.

next steps

12The hearing will proceed on May 24 to 27, 2016.

13The applicant's medical evidence will not be heard during the May hearing dates because there is an outstanding issue regarding the disclosure of clinical notes and records. The Ministry is directed to put its disclosure request in a Request for Order During Proceedings. This will provide a process for the applicant's new legal counsel to respond. Because the medical evidence will not be heard in May, the production request does not have to be dealt with quickly.

14The hearing will commence with the applicant's evidence followed by the evidence of Rupert Raj. The Commission's expert will be heard on May 27, 2016.

15If there are concerns about the applicant giving evidence about the impact of the alleged discrimination in the absence of a pending decision on the disclosure of the clinical notes and records, I will hear submissions at the commencement of the hearing regarding bifurcating the hearing on liability and remedy. I would, however, note that the disclosure request for the clinical notes and records was made very late in the hearing process.

16In a previous case management conference call, I advised the parties that we would not use the May hearing dates for the purposes of resolving the Application because it could result in valuable hearing dates not being used. I offered to conduct mediation/adjudication before the hearing. This offer was not pursued by the parties. However, as it is likely that we will not require four hearing days to hear the evidence of three witnesses, I will offer mediation/adjudication at the commencement of the hearing on May 24, 2016. If the parties agree, the hearing will start with mediation/adjudication. If they do not agree, the hearing will commence with the applicant's evidence. A copy of the Tribunal's mediation/adjudication agreement is attached to this Interim Decision for the parties' review.