Matthew Wozenilek v. City of Guelph, 2009 HRTO 1683

Human Rights Tribunal of Ontario

B E T W E E N:

Matthew Wozenilek

Applicant

-and-

City of Guelph

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: October 15, 2009

Citation: 2009 HRTO 1683

Indexed as: Wozenilek v. Guelph (City)

1This Interim Decision addresses an adjournment request by the respondent, the City of Guelph, and a request for the extension of time for the filing of documents intended to be relied upon and witness statements. The hearing is scheduled for November 25, 26, 27, and December 8, 2009.

2The reason for the request is that the City intends to rely upon the evidence of a witness who was an employee of the city and then a consultant, who it says is in the best position to provide evidence about the issues in question. The spouse of this witness has become ill and will have surgery at the time of the scheduled hearing, and the witness is therefore unavailable. The witness is expected to be available in late January or early February of 2010.

3The applicant opposes the adjournment. He argues that others can provide the relevant evidence, and relies upon the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, which states the following:

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 alternative dates for the rescheduling of the mediation or hearing. Alternative 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.

4The circumstances of this case, in my view, constitute exceptional circumstances justifying an adjournment. The respondent’s interest in presenting the case with its desired witness, who has become unavailable due to a spouse’s illness, outweighs the delay of 2-3 months in the hearing.

5There are two possible approaches that could be taken in these circumstances: all hearing dates could be rescheduled, or the hearing could start with available witnesses and continue on later dates. In the circumstances of this case, I believe that the former is the most fair, just and expeditious approach. Although the parties have not yet filed witness statements, it appears from the respondent’s submissions that the unavailable witness’s evidence is a central part of its case, and the central evidence in this Application, it appears, may well be from the respondent’s witnesses. In these circumstances, it would be preferable to schedule all the hearing days together in late January or early February. Accordingly, I grant the request that all the hearing dates be rescheduled. The dates in November and December are cancelled.

6The parties shall provide the Registrar’s office, within one week of today’s date, with any dates between January 15, 2009 and February 20, 2009 that they are not available for a rescheduled hearing.

7In these particular circumstances, the remaining deadlines under Rules 16 and 17 are extended until 45 days prior to the new dates.

8I am not seized.