Fagan v. Toronto Transit Commission, 2017 HRTO 1226

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Solomon Fagan Applicant

-and-

Toronto Transit Commission and Wheel-Trans Respondents

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel Date: September 19, 2017 Citation: 2017 HRTO 1226 Indexed as: Fagan v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Solomon Fagan, Applicant Self-represented

1This Reconsideration Decision addresses the applicant’s request that I reconsider my denial of his request for an adjournment in Interim Decision 2017 HRTO 1143.

Decision not subject to reconsideration

2Rule 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.

3In 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.

4The 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.

5Moreover, I do not consider it appropriate to reconsider my denial of the applicant’s adjournment request. The Tribunal originally scheduled the hearing for October 10-11, 2017. In response to the respondent’s request to reschedule these hearing dates, the applicant stated by email that he preferred to keep these two consecutive dates but would agree to a rescheduling of the hearing if necessary.

6From this, it appears that the applicant’s physical condition would originally have permitted him to attend two consecutive hearing dates. I understand that the applicant originally expected to be represented by counsel, but he still would have had to attend the two consecutive hearing dates. Given his original preference to maintain two consecutive hearing dates, it appears that the applicant’s condition worsened between the time of the respondents’ rescheduling request and the adjournment requests he submitted on August 17 and 21, 2017. If the applicant’s condition did indeed worsen such that he is no longer physically able to attend consecutive hearing dates, he must provide up-to-date medical documentation to support his request for an adjournment.

7I am sympathetic to the applicant’s circumstances. However, I must also take into account the Tribunal’s institutional interest in managing its resources. What may not be readily apparent to parties is that every adjournment causes a loss of hearing days which not only affects the Tribunal but also affects other parties who must wait longer to have applications heard. The Tribunal receives numerous requests for adjournments by applicants in circumstances very similar to those in the present case. If all of these adjournment requests were granted without requiring adequate medical documentation, parties to applications would have to wait considerably longer to have applications heard and decided by the Tribunal. This would lead to a gradual decline in the effectiveness of human rights adjudication and enforcement in the province over time.

further comments re. the applicant’s Reconsideration request

8In this section, I respond briefly to a number of points made in the applicant’s reconsideration request.

1. I did have before me his adjournment requests from August 17 and 21, 2017. As noted above, the Tribunal’s consistent approach is to require clear and specific current medical documentation to support requests for accommodation, including adjournment requests.

2. The applicant is always free to submit up-to-date medical information. The Tribunal will consider any up-to-date medical information he does submit. In order to support a request for an adjournment, the Tribunal requires medical documentation from a doctor, occupational therapist, or other health professional clearly confirming the applicant’s physical restrictions and the measures that would be required to accommodate them.

3. In his September 6, 2017 correspondence, the applicant stated that a further reason for his reconsideration request was his reasonable belief that the Human Rights Legal Support Centre would represent him. The Tribunal has consistently held that a party’s search for counsel, changes in counsel or absence of counsel does not amount to the kind of extraordinary circumstance that would lead the Tribunal to grant a reconsideration request.

4. The Tribunal’s technical set-up for teleconferencing and videoconferencing is as follows:

a. Video-conferencing: The Tribunal utilizes a program for video conferencing that is similar to the “Skype” program with which the parties may be familiar. If the applicant has access to a computer with a “webcam” (i.e. camera), the Tribunal can arrange for the applicant to participate by video conference. He would be able to see and hear witnesses in order to cross-examine them and the parties in the hearing room would also be able to see and hear the applicant. The applicant must advise the Tribunal if he does have access to a computer with a camera which would permit him to attend the hearing by videoconference on the second hearing day.

b. Teleconferencing in Hearing Room: Alternatively, the Tribunal’s set up for teleconferencing hearings in its hearing rooms consists of one speaker phone in the hearing room. It is unlikely that the speaker phone would be able to capture the testimony of witnesses, the questioning of the respondent’s counsel and any statements by the Vice-chair due to the distance between each of these individuals in the hearing room.

c. Teleconferencing in Mediation Room: A possible alternative to the above would be for the Tribunal to conduct the second hearing day in a large mediation room in which the respondent’s counsel, witnesses and the adjudicator would be able to position themselves closer to the speaker phone. This would allow the applicant to hear all of these individuals more clearly than would be the case in the hearing room. Although the Tribunal usually conducts hearings at its hearing center in hearing rooms, the use of a large mediation room would resemble the types of rooms used when the Tribunal conducts hearings in some of its locations outside of Toronto.

d. All parties participating by teleconference: A final alternative would be for all parties to participate by teleconference. However, in my view, such an alternative would not be appropriate since I must be able to see the respondents’ witnesses as they testify in order to make assessments of credibility, if necessary.

orders

9I do not consider it appropriate to reconsider my denial of the applicant’s adjournment request. However, the applicant may submit additional medical documentation which specifically supports his physical inability to attend to consecutive hearing days. If the applicant intends to submit additional medical documentation, he must advise the Tribunal by September 22, 2017 that he is planning to do so. He must submit the additional medical documentation by 5 PM on October 2, 2017.

10By September 22, 2017, the applicant must also advise the Tribunal, copying the respondents, whether he has access to the necessary computer set-up referred to above that would allow him to participate in the hearing by video conference.

11If the applicant does not submit appropriate medical documentation to support his adjournment request and does not have the necessary computer set-up to participate by video conference, the Tribunal will conduct the second hearing day in a large mediation room at the Tribunal’s hearing center. Such a set-up will permit the applicant to clearly hear all individuals in the hearing to ensure that he is able to fully participate in the hearing process.

12As final point, I note that the applicant has filed two production requests. I will address these requests in a separate Interim Decision.