John v. Ontario (Community Safety and Correctional Services), 2017 HRTO 1451

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darren John Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services Respondent

DECISION

Adjudicator: David Muir Date: November 2, 2017 Citation: 2017 HRTO 1451 Indexed as: John v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Darren John, Applicant No one appearing

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (OPP), Respondent Jordana K. Joseph and Adrien Iafrate, Counsel

1A hearing in respect of this Application was scheduled to take place October 25 and 26 in Toronto.

2This Application was dismissed as abandoned at the hearing when the applicant did not attend the hearing and did not provide a reasonable explanation for his failure to attend.

BACKGROUND

3On May 2, 2017, the Tribunal issued a Notice of Hearing to the parties confirming that hearing of the Application would take place on October 25 and 26, 2017 commencing at 9:30 a.m. at the Tribunal’s hearing centre at 655 Bay St, 14th Floor, Toronto, Ontario. The Notice was delivered to the applicant at the last address provided by the applicant to the Tribunal and was not returned as undeliverable.

4There is no issue of the applicant not receiving the Notice of Hearing. I am satisfied that the applicant had notice of the hearing.

5On October 10, 2017 the applicant filed a Request for Order During Proceeding (“Request”) seeking the production of documents, a change of venue, and an adjournment of the hearing.

6These requests were denied for reasons to follow in a Case Assessment Direction (“CAD”) issued on October 18, 2017. The applicant has requested reasons for the denial of his requests. My reasons are set out below. In the CAD, the applicant was directed to confirm that he would attend the hearing. On October 19, 2017 the applicant confirmed that he would attend the hearing.

7On October 19, 2017 the applicant filed a Form 20, Request for Reconsideration of the October 18, 2017 CAD. This Request was denied with reasons in Reconsideration Decision 2017 HRTO 1395 issued on October 20, 2017.

8The applicant was not in attendance at the commencement of the scheduled hearing. At that time I was advised by the respondent that the applicant had sent two emails to it and the Tribunal earlier that morning and had indicated that he may not attend the hearing. Due to administrative error these emails had not been provided to me by the Registrar. Despite the respondent’s advice about the applicant’s latter communication and in accordance with its usual practice, the Tribunal waited until 10:00 a.m. before proceeding.

9At 10:00 a.m. the applicant was not in attendance. I asked the respondent to read me the email communication from the applicant from earlier in the day. The gist of the communication was that the applicant had filed a second Request for Reconsideration of the October 18, 2017 CAD and had indicated that he might not attend the hearing.

10The respondent was in attendance and prepared to proceed. The respondent’s primary witness and the focus of the applicant’s complaints about the respondent was in attendance to give evidence although on an extended medical leave.

11In all of the circumstances I determined that there was no reasonable explanation for the applicant’s failure to attend and the Application was dismissed at the hearing.

12Subsequent to the hearing I was provided with the applicant’s communications the morning of the hearing. I have reviewed these materials. Nothing in them would have altered my determination that the Application should be dismissed.

13The applicant’s email advised as follows:

This is for the hearing this week I am at an appointment and want my rights preserved if I am unable to make it kindly provide reasons along with the decision

14The applicant also filed a second Request for Reconsideration of my October 20, 2017 CAD denying his Requests. This is a second Request of an interim determination. The Tribunal does not entertain multiple requests for reconsideration of the same issue. Moreover it does not grant reconsideration of decisions that are not final ones. See reasons for dismissal of the first Request in 2017 HRTO 1395, above. For these same reasons the second Request is denied.

15I would also observe that the applicant has filed more than 30 applications with this Tribunal and has had multiple interactions with the courts, both civil and criminal over the years. He appears to be an experienced litigant. However his brief communication sent the morning of the hearing provides no explanation for his failure to attend the hearing and no further information which would have justified his late request for an adjournment of the hearing or any other aspect of his Request made on October 10. In particular the applicant provides no explanation of the asserted conflict with an unparticularized medical appointment. He does not identify the purpose of the appointment, when it was scheduled or why it could not be re-scheduled. It is a reasonable inference that this information was not provided because it would not have supported his request for an adjournment. It is also a reasonable inference in all of the circumstances that despite warranting that he would attend the hearing, the applicant had no intention of doing so.

The applicant’s first Requests (October 10, 2017)

16The applicant sought the adjournment of the hearing, a change of venue, and the production of a document from the respondent.

17The requests were denied as indicated.

18The request to adjourn was based on three assertions of the applicant. First, it was said that the applicant had a medical appointment of some kind on the first day of hearing; second, it was asserted that the second day conflicted with another Tribunal matter; finally, the applicant asserted that the production issue he had raised could not be dealt with prior to the hearing and therefore it must be adjourned.

19The request to adjourn was denied because the applicant provided no explanation for the scheduling of the medical appointment on a day scheduled for this case. I note that the Notice of Hearing was issued on May 2, 2017. Moreover the applicant provided no information with respect to this appointment and no explanation about why it must proceed instead of the hearing. I also noted that the applicant was mistaken about a conflict with another matter on the second day of hearing. His other case was scheduled to take place on Friday October 27, 2017. As regards the resolution of the production issue, the late filing of a production request will rarely be considered by the Tribunal as a proper basis for an adjournment. In this case given that the applicant was aware of the issue from the time that he filed the Application, the fact that he decided to make his request for production on the eve of the hearing was not a reason to adjourn the hearing. In any case the production issue was resolved well prior to the hearing.

20As regards the request to change venue, the applicant asserted that he lacked the resources to attend the hearing. The Tribunal will consider requests to change venue when it is necessary to accommodate a Code related need. An alleged lack of resources is not a basis for such a request.

21Finally the request for production was denied because, although the applicant claims awareness of the document in question since before he filed the Application, he chose to make his request on the eve of the hearing. For this reason alone it would likely have been denied in the absence of any reasonable explanation of the delay in making the request. Moreover the respondent advised that the document was no longer in its possession. The Tribunal will not order the production of a document from a party unless it is in their possession or control. Finally I was not persuaded that the document requested was relevant to the issues in the case.

ORDER

22The Application is dismissed.

23The second Request for Reconsideration is denied