Sprague v. Yufest, 2017 HRTO 1147

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Sprague

Applicant

-and-

Avi Yufest

Respondent

AND BETWEEN:

Andrew Sprague

Applicant

-and-

Ontario PC Party

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 1, 2017

Citation: 2017 HRTO 1147

Indexed as: Sprague v. Yufest

WRITTEN SUBMISSIONS

Andrew Sprague, Applicant

Self-represented

Avi Yufest and Ontario PC Party, Respondents

Gina Saccoccio Brannan, Counsel

1This Interim Decision addresses the applicant’s request that the Tribunal reconsider its previous Interim Decision and his request for an adjournment of the hearing scheduled for October 11-12, 2017.

request for reconsideration

Not a Final Decision

2The applicant requested a reconsideration of Interim Decision 2016 HRTO 1615 in which I granted his production request in part.

3Rule 26.1 of the Tribunal’s Rules of Procedure provides that a party may request reconsideration of a “final” decision of the Tribunal. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties. See for example Ontario Human Rights Commission v. Ontario Teachers’ Federation, 1994 CanLII 10578 (ON CTGD), 19 O.R. (3d) 371.

4In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal considered at length the question of when a decision should be considered final for the purposes of the reconsideration power. After carefully considering the policy issues and the relevant authorities the Tribunal concluded:

As a general principle, having regard to the approach taken in other forums as well as the above discussion, it is reasonable to view a “final decision” as one that disposes of some or all of the central issues in the complaint as between the parties. This general principle will take on a more precise shape as the Tribunal applies it to cases before it.

5The Interim Decision challenged by the applicant is not a final decision which can be subject to a Request for Reconsideration. The Interim Decision does not dispose of some or all of the central issues in the complaint as between the parties. Not being a final decision, the Interim Decision cannot be the subject of a reconsideration request. See Thomas v. IATSE Local 461, 2012 HRTO 1993 and Cook v. Ottawa Police Services Board, 2010 HRTO 1138.

Reconsideration on Tribunal’s Own Initiative

6Under Rule 26.9 of the Tribunal’s Rules of Procedure, the Tribunal may reconsider a decision on its own initiative where it considers it advisable and appropriate to do so. I am not persuaded that there is any legitimate reason to reconsider my Interim Decision in this case except to extend one of the production Orders I made in my Interim Decision to, a third party, Haley Gotfrid.

7The applicant submitted that reconsideration was appropriate on the basis that my Interim Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. He also submitted that other factors exist that should outweigh the public interest in the finality of Tribunal decisions.

Gotfrid log

8The applicant points out that there is some confusion as to which of his three production requests my Interim Decision covers. The applicant has a point that the Interim Decision is not perfectly clear on this issue since it refers to two production requests in para. 1 and three requests at para. 4. The reason for this is that the applicant filed two Requests for Orders During Proceedings (“RFOPs”) on May 31, 2017. The first one, sent by email at 7:08 am, sought production of a call log for a call between Haley Gotfrid and Avi Yufest (“Gotfrid log”). The second one, sent by email at 7:20 am, sought production of various documents including the Gotfrid log. Confusion arose as I mistakenly believed that the applicant’s second RFOP was an amended and expanded version of the first. I now see that the applicant intended the first RFOP as a third party production request seeking production from Haley Gotfrid and the second RFOP sought production of materials, including the Gotfrid log, from the respondent, Ontario PC Party.

9In my Interim Decision, I agreed with the applicant that the Gotfrid log is arguably relevant to the issues I need to decide in this case and should be produced. I ordered it to be produced by the Ontario PC Party. The respondents have advised the applicant that they cannot produce the Gotfrid log as it has never been and is not now in their possession, power or control. In these circumstances, I agree with the applicant that it is appropriate to make an order that the Gotfrid log be produced by Haley Gotfrid.

PC-16 Forms

10The applicant seeks reconsideration of my decision to deny production of two sets of documents that he sought, namely the following:

1. a copy of all of the Form PC-16 (Appointment of Scrutineer) that were presented for the electoral districts of York Centre and Willowdale on both Sunday, May 3, 2016 and Thursday, May 9, 2016

2. for every electoral district, a copy of all of the Form PC-16 (Appointment of Scrutineer) that were presented on Sunday, May 3, 2016 and Thursday, May 9, 2016 in respect of each electoral district.

11With respect to the first item above, the applicant has clarified that the dates should be May 3 and 7, 2015. The applicant claims that the respondents have argued that the applicant was removed from the voting location because only one scrutineer is permitted for each electoral district. The applicant claims there is a dispute as to the facts regarding whether the PC Party permitted more than one scrutineer per electoral district and the PC-16 forms would assist in determining the truth.

12I do not agree with the applicant. As noted in my Interim Decision, there are two allegations in this case:

a. That respondents discriminated and/or reprised against the applicant when he was prevented from performing his tasks as a volunteer scrutineer on May 3, 2015 because he asked the respondent Avi Yufest why the polling location was not accessible; and

b. That the Ontario PC Party discriminated against the applicant because the voting location allegedly lacked sufficient and appropriate heating, ventilation, and air conditioning for his service dog.

13The PC-16 forms relate to the first allegation. The applicant has alleged that he experienced discrimination by the respondents because of disability when he was asked by the respondent to leave the polling station shortly after he asked why the polling station was not accessible. In their Response to this allegation, the Response alleged in its relevant part as follows:

a. The applicant was sent as a scrutineer;

b. The leadership campaign for which the applicant was a scrutineer sent three scrutineers to the York Centre polling location;

c. the applicant entered the polling location with his service dog and this was not an issue;

d. The applicant began causing “unnecessary controversy inside the polling location which was interfering with the voting process”;

e. Avi Yufest confirmed that each candidate was permitted two scrutineers, one for York Centre and one for Willowdale;

f. Mr. Yufest spoke to the person who appeared to him to be the lead scrutineer for the candidate the applicant was representing and informed him that one of the three would have to leave;

g. Mr. Yufest informed the apparent lead scrutineer that he would prefer that the applicant be asked to leave given that he was allegedly disrupting and interfering with the voting process but that it was ultimately the lead scrutineer’s call as to which of the three scrutineers he would ask to leave the polling station;

h. The lead scrutineer informed Mr. Yufest that he understood the rule and that he would take care of it;

i. The applicant left the polling station; and

j. Mr. Yufest did not ask the applicant to leave the polling station.

14The key issues to be determined with respect to the applicant’s first allegation are: (1) what the facts are with respect to the applicant being prevented from performing tasks as a scrutineer and (2) whether the respondents breached the Code with respect to the applicant’s being prevented from performing these tasks.

15In my view, what is relevant is not the number of scrutineers that were permitted, but the following: why the respondents requested or indicated a preference that the applicant be the one to leave; whether it is true that the applicant had caused an “unnecessary controversy inside the polling location which was interfering with the voting process”; if so what that controversy and interference was; whether the applicant was asked to leave; who made the decision to ask him to leave; and whether the respondents are liable under the Code for the applicant’s departure.

16Those are the key issues and I do not agree that the PC-16 forms will assist me in resolving these issues. Even if I were to find that only one scrutineer was permitted per polling station, the respondents could nevertheless be liable for a breach of the Code if they were responsible for the applicant being treated differently because of a Code ground. Therefore, the focus of the hearing should be on the questions I have just listed relating to the events surrounding the applicant’s leaving the polling station. In this respect, I note that it appears that a key witness will be the person who was the apparent lead scrutineer for the campaign the applicant was representing.

17For the above reasons, I decline to reconsider my decision not to order production of any PC-16 forms in this case.

adjournment request

18By correspondence dated August 24, 2017, the applicant requested an adjournment of the hearing scheduled for October 11-12, 2017. The applicant requested the adjournment because the Tribunal granted the respondents’ request for an extension of time to file their hearing documents and witness statements until September 11, 2017. The applicant argued that it is unfair for him to be denied at least 45 days to prepare for the hearing. The applicant claims that, as can be seen by Interim Decision, 2016 HRTO 642, his Application raises many issues that are novel and complex. He claims that the fact that the Tribunal did not dismiss his Application after it held a summary hearing speaks to the novelty and/or complexity of the case.

19In his response to the respondents’ extension request the applicant opposed an extension inter alia on the basis that he is a lawyer practicing at a large law firm and this limits the time he can spend on his own litigation. He also stated that he had two other applications he filed with the Tribunal that are scheduled to proceed to merits hearings in October.

20The respondents consented to the applicant’s adjournment request for several reasons including the following: Mr. Yufest recently underwent major neurosurgery for the removal of a brain tumour and is still recovering, the respondent’s counsel will be required to travel out of the country because her son has been receiving medical treatment; one of the hearing days is a Jewish High Holiday observed by two of the respondents’ witnesses. The respondent requested that the Tribunal schedule four consecutive hearing days for the Application and set the deadline for pre-hearing materials to 60 days prior to the first hearing day.

21The applicant replied that the September 11, 2017 deadline for pre-hearing materials should remain in force because he is concerned that the respondents will miss any new deadline and that he will be left with less than 45 days to prepare for the rescheduled hearing.

Finding

22The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

The HRTO discourages requests for adjournments outside the ten-day period to request rescheduling of a hearing (…) 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, copied to the other parties.

23As the Practice Direction makes clear, the Tribunal grants adjournment requests made outside the 10-day period for rescheduling requests only in “extraordinary” circumstances, even if both parties consent to the adjournment.

24In 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.

25The fact that an applicant has filed multiple applications with this Tribunal which are all being heard around the same time is not an extraordinary circumstance that warrants an adjournment. It is also not an extraordinary circumstance for an applicant to only be in possession of the respondent’s pre-hearing documents 30 days rather than 45 days in advance of the hearing.

26In addition, I disagree with the applicant that this case raises complex and novel issues and that the fact that the Tribunal declined to dismiss it after the summary hearing speaks to the novelty and complexity of the issues raised in this case. Far from supporting the applicant’s view that this case raises complex and novel issues, Vice Chair Hart’s Interim Decision, 2016 HRTO 642, states as follows “In my view, the allegation raised in this case is really quite straight forward.” (para. 3). I agree with Vice Chair Hart. The allegations in this case are really quite straight forward. Although they are of great significance to the applicant, they are not novel or complex. Therefore, this too would not be a reason to grant the applicant’s adjournment request.

27As stated in the Practice Direction quoted above, the Tribunal does consider the illness of a party to constitute an exceptional circumstance that justifies an adjournment of a hearing. As well, the Tribunal does consider requests for accommodations for religious observance as an exceptional circumstance that might warrant an adjournment if an adjournment were necessary to accommodate this observance.

28In light of all of the circumstances, I grant an adjournment of the hearing in this case. I do not necessarily agree with the respondents that the hearing of this case will take four days. I will be in a better position to provide directions as to the effective use of the Tribunal’s hearing time once I receive the parties’ pre-hearing materials and will provide further directions at the appropriate time. For the time being the Tribunal will reschedule the two hearing days that are being adjourned.

29I do not agree with the applicant that the September 11, 2017 date for the filing of pre-hearing materials ought to be maintained. In my view, the deadline for pre-hearing disclosure ought to be calculated with reference to the rescheduled first day of hearings. In the circumstances, I am prepared to order a variation from the standard 45 days to direct that the pre-hearing disclosure will be due 60 days before the first rescheduled hearing date. I acknowledge the applicant’s concern that the respondents will not comply with this disclosure date and ask for an extension. For this reason, I wish to make clear that no extensions to the new pre-hearing disclosure deadline will be granted, absent a truly extraordinary circumstance such as the death of a party.

order

30For the above reasons, the Tribunal orders as follows:

a. The Tribunal denies the applicant’s Request for Reconsideration except in the following respect: within 14 days of this Interim Decision, Haley Gotfrid must produce to the applicant, with a copy to the respondents, a copy of the telephone call log for Sunday, May 3, 2015, between 1130 hrs and 1230 hrs, for the mobile telephone that Haley Gotfrid gave to Avi Yufest immediately prior to Avi Yufest telling the Applicant that he was required to leave the polling station and that he was no longer permitted inside.

b. The hearing scheduled for October 11-12, 2017 is adjourned and will be rescheduled. No later than September 15, 2017, the respondents’ counsel and the applicant must jointly advise the Tribunal in writing of five sets of two consecutive hearing days on which the parties along with their respective witnesses are available. The Tribunal’s Registrar will endeavour to reschedule the hearing on one of the sets of two consecutive hearing dates provided by the parties. The deadline for the parties’ pre-hearing disclosure required under Rules 16.2, 16.3, 17.1 and 17.2 will be set at 60 days prior to the first hearing date.