HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gordon Lemaire
Applicant
-and-
Heritage Ford Sales Limited, Greg Bleeks and Arthur Ophelders
Respondents
INTERIM DECISION
Adjudicator: Kaye Joachim
Indexed as: Lemaire v. Heritage Ford Sales
1A Case Resolution Conference (“hearing”) in this matter is scheduled for November 2, 2009. The hearing was scheduled by Notice from the Tribunal dated July 9, 2009 after consultation with the parties. This Interim Decision addresses the respondents’ request for an adjournment.
2The basis for the adjournment request is that the applicant failed to produce clinical records, pre-employment medical documentation and mitigation documents. The respondents also seek to interview WSIB witnesses and obtain the entire WSIB file.
3While 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.
4The 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.
5The reasons for the request do not constitute exceptional circumstances that would permit an adjournment. The respondents have been in possession of most of the medical documents since the applicant disclosed them in August 2009. If the medical disclosure, WSIB disclosure and the mitigation disclosure were inadequate, the respondents ought to have filed a request for production to the Tribunal in a timely manner. A party cannot engineer an adjournment by sitting on its rights and making a late request for production.
6The request for adjournment is denied.
7The production issues may be raised by the respondents to the Member hearing the Application.
Dated at Toronto, this 26th day of October, 2009.
“Signed by”
Kaye Joachim
Alternate Chair