Woldeyesus Ugbay v. ESTON Manufacturing and Bill Banner, 2009 HRTO 611

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Woldeyesus Ugbay

Applicant

-and-

ESTON Manufacturing and Bill Banner

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: May 11, 2009

Citation: 2009 HRTO 611

Indexed as: Ugbay v. Eston Manufacturing

1A hearing in this matter was scheduled for May 7, 2009. The hearing was scheduled by letter from the Tribunal dated February 11, 2009 (“Confirmation of Hearing”).

2During the afternoon of May 6, 2009, the day before the scheduled hearing date, counsel for the applicant, Mr. Gerald Punnett, sent an email to the Tribunal’s Registrar requesting an adjournment of the hearing. He advised that he had been called to trial in Superior Court of Justice. He advised that he did not “recall” receiving the Tribunal’s Confirmation of Hearing. He also advised that he would still have to file a Request for Order During Proceedings (Form 10) but did not specify what issue would trigger this filing. He advised that counsel for the respondents had consented to the adjournment.

3Subsequent to that email, counsel for the respondents, Mr. Hendrik Nieuwland, forwarded to the Tribunal correspondence he sent to Mr. Punnett consenting to the adjournment on the condition that various documentation be provided to the respondent by May 29, 2009. There was no indication from Mr. Punnett as to whether or not he agreed with the conditions identified by Mr. Nieuwland.

4The Tribunal directed the parties to attend the hearing on May 7, 2009 and advised that the adjournment request would be addressed at the hearing.

5On May 7, 2009, the Applicant attended the hearing as did Mr. Nieuwland. Mr. Punnett was absent. In response to my question, the applicant stated that he was not comfortable proceeding with a hearing in the absence of his lawyer. Mr. Nieuwland confirmed again that the respondents were agreeable to the adjournment request on the condition that the documents and list of witnesses required by Rules 16 and 17 of the Tribunal’s Rules of Procedure are provided to the respondents within twenty-one (21) days. The respondents also requested that costs in the amount of $500 be awarded because of Mr. Punnett’s late request for an adjournment. Mr. Nieuwland confirmed, in response to my questions, that Mr. Punnett had been sent his office’s correspondence dated March 23, 2009 and April 22, 2009. I note the hearing date of May 7, 2009 was clearly stated on both pieces of correspondence.

6The Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments (“Adjournment Bulletin”) provides that requests to reschedule must be made within five (5) days of receiving the Confirmation of Hearing and will be granted 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.

7Mr. Punnett’s request for an adjournment does not comply with the Tribunal’s Adjournment Bulletin. While Mr. Punnett has stated that he does not “recall” receiving the Confirmation of Hearing, he was sent correspondence from Mr. Nieuwland’s office in March and April 2008 identifying the date of the hearing. The first, delivered the respondents’ documents, the second delivered the respondents’ list of witnesses and witness statements and the third requested the applicant’s documents and list of witnesses. The correspondence clearly noted that a hearing was scheduled for May 7, 2009 and that should have prompted Mr. Punnett to contact the Tribunal if he was unaware that a hearing date had been scheduled.

8Mr. Punnett did not deliver the applicant’s documents, list of witnesses and witness statements as required by the Tribunal’s Rules. I issued a Case Assessment Direction dated April 30, 2009 directing that the applicant immediately deliver his documents and list of witnesses to counsel for the respondents and file these with the Tribunal. I also noted the May 7, 2009 hearing date. I also stated, “The applicant is reminded that failure to comply with the Rules and this Case Assessment Direction may result in the Tribunal refusing to admit evidence from a witness and/or documents at the hearing, or taking any other action as is considered appropriate”. As of the date of this Interim Decision, the applicant’s materials still have not been delivered to the Tribunal.

9As the adjournment request was not the fault of the applicant and given his stated discomfort in proceeding without his counsel, I determined in these circumstances not to require the applicant to proceed with the hearing on May 7, 2009 in the absence of his counsel. Therefore, the hearing of May 7, 2009 was adjourned. I advised the parties that I would be addressing the respondents’ submissions and a peremptory hearing date would be scheduled by the Tribunal.

10Therefore, I order:

a) The Tribunal will schedule June 2, 2009 as a hearing date. This date is peremptory to the applicant, which means that neither the applicant nor his counsel can request an adjournment for that date;

b) The Tribunal shall send a copy of this Interim Decision to the applicant as well as his counsel and respondents’ counsel;

c) The applicant has until May 19, 2009 to deliver his documents, list of witnesses and witness statements to the respondents’ counsel and the Tribunal. This includes an identification of whether the applicant himself will be testifying and a copy of his witness statement. I will reserve on whether the applicant’s documents, list of witnesses and witness statements are admissible in the hearing if they are provided by May 19, 2009 and will hear the respondents’ submissions, if any, on this point;

d) If the applicant does not deliver his documents, list of witnesses and witness statements to the respondents’ counsel and the Tribunal by May 19, 2009, the Tribunal will not permit the applicant to introduce documents into evidence and will not permit the applicant to call witnesses; and,

e) The respondent’s request for costs is denied as the Tribunal does not have jurisdiction to award costs.