Solomon Fagan v. Toronto Transit Commission and Wheel-Trans, 2017 HRTO 1323

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Solomon Fagan

Applicant

-and-

Toronto Transit Commission and Wheel-Trans

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: October 6, 2017

Citation: 2017 HRTO 1323

Indexed as: Fagan v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Solomon Fagan, Applicant

Self-represented

Toronto Transit Commission and Wheel-Trans, Respondents

Angela Rae, Counsel

1This Interim Decision addresses the applicant’s second request to adjourn and reschedule the second day of hearings currently scheduled for October 18, 2017. It also directs the applicant to file a witness statement for himself and addresses certain other issues related to the upcoming hearing.

request to adjourn second hearing day

2By Interim Decision, 2017 HRTO 1226, I denied the applicant’s first request for an adjournment on the basis that he had not provided sufficient medical documentation to support his request to adjourn the second hearing day.

3On September 29, 2017, the applicant filed a copy of a letter from a treating physician stating that it is very difficult for him to attend a hearing on two consecutive days because of his disability and mobility issues.

4The respondents opposed the applicant’s adjournment request. Among other things, the respondents argued that the medical letter submitted by the applicant is not sufficient to support his request. In particular, as noted by the respondents, the letter does not state that the applicant is unable to attend consecutive hearing days. It also does not address the mode of accommodation discussed in my previous decisions which would involve conducting the second hearing day by teleconference.

Finding

5The Tribunal’s Practice Direction on requests to adjourn or reschedule hearings and case law makes clear that the Tribunal will only grant adjournments in exceptional circumstances. Although it is arguable that the medical note submitted by the applicant is not sufficient to support his adjournment request in this case, I am prepared to grant his request to adjourn and reschedule the October 18, 2017 hearing day. In particular, even though the applicant appeared to agree to cross-examine the respondent’s witnesses by teleconference, I have concerns about the procedural fairness of this way of proceeding. Overall, I consider it appropriate to adjourn and reschedule the second hearing day in this case. However, I will be issuing a Case Assessment Direction in advance of the October 17, 2017 hearing day to make directions to ensure the effective use of the Tribunal’s hearing time and the parties’ time during the hearing.

witness statement for applicant

6Although the applicant has filed his hearing documents, he has yet to file a list of witnesses he intends to call at the hearing and witness statements for these witnesses. The applicant must file his witness list and a detailed witness statement for himself and any other witness he intends to call at the hearing, with the exception of his intended witness “Lily”. I will address the applicant’s request for the production of contact information for Lily in a subsequent Interim Decision.

7For the time being, the applicant does not need to file a witness statement for “Lily” but he does have to immediately file his witness list and a detailed witness statement for himself and any other witness he intends to call at the hearing.

Recording of Hearing

8By email dated October 4, 2017, the applicant notified the Tribunal and the Respondent that he intends to bring his own electronic equipment to record the upcoming hearing. The Tribunal has very specific rules that apply to the recording of hearings. These rules are set out in the Tribunal’s Practice Direction on Recording Hearings which is available on the Tribunal’s website. The Practice Direction states in its relevant part as follows:

Recording as Accommodation for Code-related Needs

The HRTO will record a hearing when it is necessary to accommodate the needs of the panel, a party or a representative under the Human Rights Code. Please contact the Registrar as soon as possible if you require accommodation.

Self-recording and Transcription

If a party wishes to record a hearing to supplement his or her notes, he or she must get the permission of the panel and provide a copy of any recording or transcription to the other parties and the HRTO (on a USB device or CD). Such recordings or transcriptions do not form part of the HRTO's record of proceedings, including the record filed in court in respect of any application for judicial review. The recording or transcription may not be publicized or used for any purpose other than in the proceeding before the Tribunal

9The applicant has not made a request for the Tribunal to record the hearing as an accommodation. Therefore, it appears that he is intending to self-record the hearing for some other purpose. As stated in the Practice Direction, the applicant must obtain the Tribunal’s permission to record the hearing. This will require making a request to record the hearing and providing reasons for why a recording is necessary. The respondents will have the opportunity to make submissions in response to the applicant’s request. If I granted the request, the applicant would be required to provide a copy of the recording to the respondents and the Tribunal. In addition, the recording would not become part of the Tribunal’s record of proceedings and it could not be publicized or used for any purpose other than in this proceeding before the Tribunal.

Production request

10I will address the applicant’s production request relating to the last name and contact information for Lily in a subsequent Interim Decision.

communications with the Tribunal

11The parties must ensure that any communications with the Tribunal are sent to the Tribunal’s Registrar. In particular, the parties must ensure that they do not reply to any emails delivering decisions to them. Decisions are sent by administrative staff. Any emails to the Tribunal must not be sent to any administrative staff, but instead sent to the Tribunal’s Registrar.

ORDER and directions

12For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to adjourn and reschedule the October 18, 2017 hearing date is granted. The October 17, 2017 hearing date will proceed as scheduled. On that hearing date, I will canvass the parties’ availability to reschedule the October 18, 2017 hearing date.

b. By no later than 5 PM on October 10, 2017, the applicant must deliver to the Tribunal and the respondents, his witness list and a detailed witness statement for himself and any other witness he intends to call at the hearing with the exception of his intended witness “Lily”. The applicant must limit the intended evidence contained in his witness statement to the issues remaining in this case which I are listed in para. 4 of Interim Decision, 2017 HRTO 1143.

c. If the applicant wishes to record the hearing, he will be required to make a request to this effect at the outset of the October 17, 2017 hearing.

13I will issue a subsequent Interim Decision addressing the applicant’s production request. Next week, I will also issue a Case Assessment Direction making directions for the effective use of hearing time in this case.