William Asiamah v. Olymel S.E.C./L.P., 2009 HRTO 1467

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Asiamah

Applicant

-and-

Olymel S.E.C./L.P., John He and Michel Boudreault

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: September 14, 2009

Citation: 2009 HRTO 1467

Indexed as: Asiamah v. Olymel S.E.C./L.P.

1A Case Resolution Conference (“hearing”) in this matter is scheduled for September 15, 2009. The hearing was scheduled by Notice from the Tribunal dated July 2, 2009 after consultation with the parties. The Application was previously scheduled to take place in May 2009 and was adjourned at the last minute by the request of the respondents. The basis for that request was the difficulty in locating a personal respondent and key witness Henry He.

2The respondents state that personal respondent Boudreault received a telephone call from Mr. He on September 3, 2009 advising that he would be out of the country due to a serious illness of his father until September 31, 2009. Again, the respondents state that Mr. He is a key witness.

3The Tribunal did not seek the submissions of the applicant on this adjournment request, as consent does not necessarily result in an adjournment.

4While the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments does not specifically apply to Transition Applications, nonetheless the principles set out in this Information Bulletin are equally applicable to Transition Applications.

5The Tribunal’s Information Bulletin provides that requests to reschedule must be made within five (5) days of receiving the Confirmation of Hearing and that thereafter, adjournments will be granted only in extraordinary circumstances. The Information Bulletin states the following regarding requests for adjournments:

Requests for adjournment, particularly last minute requests for adjournments are a significant impediment to fair and timely access to justice.

The Tribunal’s approach to scheduling and rescheduling mediations and hearings is designed to give the parties a fair opportunity to find suitable dates. Therefore, the Tribunal discourages adjournment requests, and will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative.

The Tribunal will not automatically grant adjournments even when all parties consent. Consent of all parties will be a factor which the Tribunal will consider where a request to adjourn a mediation or hearing is made, but it is not the only, or even the main factor.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. If practical, they should contact the other parties to seek their consent, and to discuss alternate dates for the rescheduling of the mediation or hearing. Alternate dates for mediation must fall within five (5) months of the date of the Notice of Application. Alternative dates for a hearing must fall within five (5) months of the date of the Confirmation of Hearing.

The party making the request should contact the Registrar and provide the reason for the request and the alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by telephone or email.

The Tribunal typically will not adjourn a hearing date because the parties wish to “engage in settlement discussions” or are “close to a deal”. The Tribunal encourages mediation and settlements, and will assist the parties in this regard. Where parties believe they may be able to resolve a matter shortly before the scheduled hearing, they should advise the Registrar and the Tribunal will make a mediator and mediation room available. However, the Tribunal discourages the cancellation or adjournment of hearing dates so that the parties can explore settlement.

6The reasons for the Request do not constitute exceptional circumstances that would justify an adjournment. The respondents have not set out sufficient explanation of the steps taken to locate Mr. He in light of the fact that their other witness Boudreault is apparently in touch with him. Further, Mr. Boudreault was apparently aware since September 3, 2009 that Mr He was out of town, but the corporate respondent only requested the adjournment on September 10, three business days before the hearing. Finally, it is not apparent that Mr. He’s presence will be required on the first day of hearing when the applicant presents his case and the Member hearing the Application can address how to deal with Mr. He’s absence.

7The request for adjournment is denied.

Case Management

8There may well be a question of whether the respondent He has received notice of these proceedings, whether he is avoiding the Tribunal process, and/or whether the applicant is willing to withdraw the Application against him to permit the Application against the remaining respondents to continue, all of which are best dealt with at the hearing.

9The applicant has filed a statement of delivery stating that the Application was delivered to Mr. He’s home address. The Tribunal has written to Mr. He at this address several times and the communications have not been returned to the Tribunal.