Delma Bhatnagar v. Radical Design Ltd. and Carmen Escanden, 2009 HRTO 1855

Human Rights Tribunal of Ontario

B E T W E E N:

Delma Bhatnagar

Applicant

-and-

Radical Design Ltd. and Carmen Escanden

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 3, 2009

Citation: 2009 HRTO 1855

Indexed as: Bhatnagar v. Radical Design

1A Case Resolution Conference (“hearing”) in this matter is scheduled for December 4, 2009. The hearing was scheduled by Notice from the Tribunal dated August 12, 2009. Although invited to indicate their availability for the hearing dates, the respondents did not respond, and accordingly, the Tribunal scheduled the hearing without further input from them. This Interim Decision addresses the respondents’ request for an adjournment.

2The respondent faxed the Tribunal on October 20, 2009, seeking to adjourn the hearing on the basis that he lives primarily in Bangladesh and that the personal respondent Carmen Escandon who had been handling the matter was no longer with the company.

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 known since August 2009 that the hearing was scheduled in December 2009. Ms. Escandon’s departure from the corporate respondent does not alter this situation. As she was still working for the company at the time the Notice of Case Resolution Conference was scheduled, it appears that she has received notice of this matter.

6The respondents are advised that if they fail to attend on December 4, 2009, the hearing will proceed in their absence and the Tribunal may take any of the following actions pursuant to Rule 3.2 of the Tribunal’s Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code, which reads as follows:

3.2 Where an Application (Form A or Form TR-1)) is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application, including the allegations set out in the complaint;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

7The request for adjournment is denied.