Stella Marfo v. Mouldrite Inc., Dave Burkitt and Rena Ghandi, 2009 HRTO 1829

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stella Marfo

Applicant

-and-

Mouldrite Inc., Dave Burkitt and Rena Ghandi

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: October 30, 2009

Citation: 2009 HRTO 1829

Indexed as: Marfo v. Mouldrite

1A Case Resolution Conference (“hearing”) in this matter is scheduled for November 6, 2009. The hearing was scheduled by Notice from the Tribunal after consultation with the parties. This Interim Decision addresses the applicant’s request for an adjournment and other orders.

2The applicant is seeking an adjournment because the respondents have failed to comply with their obligations to disclose their documents and will say statements of their witnesses in a timely fashion. The respondents disclosed documents to the applicant in accordance with the Tribunal Rules of Procedure, but did not provide a list of which documents, if any they are intending to rely upon. That list was due on October 16, 2009. While the respondents did provide a list of witnesses, they did not provide a statement of what the witnesses were expected to say. The applicant’s counsel wrote to the respondents on October 21, 2009 seeking this information and advising that as counsel is visually impaired, it is essential to obtain the information in a timely fashion.

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 justify an adjournment at this time. On the contrary, granting an adjournment may benefit the respondents as they would have time to remedy their failure to comply with the Rules. There are alternative measures the Tribunal may take to address the respondents’ failure to comply with the Rules, including refusing to admit the documents or hear the witnesses.

6It appears that the applicant’s counsel has had the potential documents to be relied upon for some time. All that is required from the respondents is to provide a list of the ones they intend to rely upon. Accordingly, there is still time to remedy that failure to comply with the Rules.

7The respondents are directed to deliver to the applicant’s counsel and to the Tribunal, within two days of the date of this Interim Decision the following materials:

• A list of the documents they intend to rely upon;

• The documents (to the Tribunal only);

• A description of what each proposed witness will say;

• An explanation why the above was not provided in a timely fashion and submissions on why the above should be admitted at the hearing.

8The parties shall attend on November 6, 2009. The Member hearing this matter has the discretion to determine whether the above material will be admitted, and if so, may determine whether the applicant is prejudiced by the late delivery of the material, in light of the applicant’s counsel’s visual impairment, and fashion an appropriate remedy, including an adjournment at that time.