Ibrahim v. Art O’Can Style, 2016 HRTO 93

Human Rights Tribunal of Ontario

Between:

Natasha Ibrahim Applicant

-and-

Art O’Can Style Respondent

Decision

Adjudicator: Colin Johnston Date: January 20, 2016 Citation: 2016 HRTO 93 Indexed as: Ibrahim v. Art O’Can Style

1The applicant filed an Application alleging that the respondent discriminated against her contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). A hearing in respect of this Application is scheduled for January 22, 2016.

2This decision deals with the applicant’s request for an adjournment and the failure of both the applicant and the respondent to send to the Tribunal copies of their witness statements and documents they intend to rely on at the hearing pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure.

Background

3A Notice of Hearing was sent to the parties on July 31, 2015. The Notice of Hearing set out that pursuant to Rule 16 of the Tribunal’s Rules of Procedure, the applicant and respondent were obliged to each send a copy of all arguably relevant documents in their possession to the other party by no later than August 21, 2015.

4On August 21, 2015, the Tribunal granted an extension of this deadline to September 30, 2015, at the request of the applicant. At the time, the applicant was represented by the Human Rights Legal Support Centre. Despite the extension of the deadline, neither the applicant nor the respondent complied with their obligations under Rule 16.

5On October 14, 2015, the Tribunal received notice that the Human Rights Legal Support Centre was no longer representing the applicant. There was no indication at that time that the applicant was out of the country.

6Pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, the parties were obliged to send to the Tribunal and each other by no later than December 8, 2015, a copy of witness statements and the documents they intended to rely on at the hearing. This obligation is expressly set out in the Notice of Hearing dated July 31, 2015. Despite this deadline, neither party have complied.

7On December 22, 2015, the Tribunal sent out a Case Assessment Direction (“CAD”) to the parties alerting them to the fact that they had failed to comply with the requirement to provide pre-hearing disclosure of documents and witness statements. As the applicant is no longer represented by legal counsel, the CAD was sent directly to the applicant’s address as set out in her Application. The CAD set a new deadline of January 5, 2016 for both parties to comply. It also warned that there could be serious consequences (including dismissal of the Application) if the parties did not comply.

8On January 5, 2016, the Tribunal received notice that the courier sent to the applicant’s address was returned as undeliverable. Upon review of the file it appeared that the applicant did advise the Tribunal at the mediation that her address had changed. On January 8, 2016, the Tribunal made another effort to resend a copy of the CAD to the applicant, by way of email. The deadline for filing material was extended to January 15, 2016.

9On January 11, 2016, the applicant emailed the Tribunal advising that she was in India attending a family emergency and would be unable to attend the hearing scheduled for January 22, 2016. At the same time, a representative for the respondent made contact with the Tribunal and provided contact information for the respondent in the form of a facsimile number.

Request for Adjournment

10On January 12, 2016, the Tribunal wrote to the applicant to confirm whether she was formally requesting an adjournment and if so, the reasons for her request. More specifically, the Tribunal asked the applicant to provide particulars as to the nature of the family emergency; why it required her to travel to India; when the emergency arose; when she left for India; and why she was only raising her adjournment request this late in the process? The applicant was given a deadline of January 15, 2016 to provide these particulars. The respondent, in turn, was given a deadline of January 19, 2016 to reply.

11On January 13, 2016, the applicant sent an email to the Tribunal requesting an adjournment. The applicant stated that her parents were getting older and that she visits them frequently. She left for India on September 19, 2015 to assist with the care of one of her parents who had health problems. She became aware of these problems in September 2015.

12Her plan was to remain in India until March 2016. She explained that she needed to remain in the country until that time, in order to apply for and receive an Overseas Citizenship of India card, which would replace the need to obtain a visa each time she re-enters the country.

13The applicant stated that she did not inform the Tribunal that she was unable to attend the January 22, 2016 hearing before she left for India, as there was nothing actively going on with respect to her file and she simply forgot to contact the Tribunal before she left.

14The respondent did not provide any submission in reply to this request.

15The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments provides that requests to reschedule must be made within 14 days of receiving the Notice of Hearing and that thereafter, adjournments will be granted only in extraordinary circumstances. The Practice Direction states in part as follows:

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.

16It is the practice of the Tribunal to grant adjournments sparingly regardless of the consent of the other parties. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 the Tribunal stated at paragraph 4:

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.

17In my view, the reasons cited by the applicant for not being able to attend the hearing are not extraordinary circumstances. This is not a situation where the applicant had to leave the country to deal with a sudden, unexpected medical emergency. It appears that the applicant left for India with the intention of being out of the country for six months. At this point in time, she already received the Notice of the Hearing. The fact that she is assisting with the care of one of her parents is not an exceptional circumstance. Moreover, the fact that she is remaining out of the country for six months in order to obtain a dual citizenship card is also not an exceptional circumstance justifying an adjournment on such short notice.

18At the very least, the applicant, in these circumstances, should have requested an adjournment in September 2015 prior to leaving the country. Her explanation that she simply forgot to do so because “there was nothing actively going on in her file” is not a credible explanation. In September 2015, the applicant was under a new deadline to send all relevant documents to the respondent and provide proof of same to the Tribunal. Her file was indeed active and was active following a request made by the applicant for an extension of time. The fact that she failed to meet this deadline and then left the country for six months suggests that the applicant was simply inattentive and made no effort to update herself (through her counsel or through the Tribunal) as to the status of her case before leaving the country.

19In my view, there is nothing extraordinary about the circumstances described by the applicant that would justify granting an adjournment. For these reasons, the applicants request to adjourn the hearing is denied.

Pre-Hearing Disclosure

20The applicant has repeatedly failed to comply with the Tribunal’s direction to produce documents and witness statements to both the respondent and the Tribunal. These obligations are expressly set out in the Notice of Hearing dated July 31, 2015.

21Both the Notice of Hearing dated July 31, 2015 and the Case Assessment Direction dated December 22, 2015 warn that there could be serious consequences for failing to comply with the pre-hearing disclosure obligations, including dismissal of the Application. I appreciate that the CAD was sent to the wrong address. Had the CAD been sent to the correct address it would have made little difference as the applicant was out of the country. In the end, the applicant did receive a copy of the CAD on January 8, 2016 when it was emailed to her attention.

22In the circumstances, I find that the applicant has abandoned her Application by failing to meet her pre-hearing disclosure obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure.

Order

23The request to adjourn the hearing scheduled for January 22, 2016 is denied.

24The Application is dismissed as abandoned and the January 22, 2016 hearing date is cancelled.