Vallentyne v. Royal Canadian Legion, 2009 HRTO 660

Human Rights Tribunal of Ontario

B E T W E E N:

Lynn Vallentyne

Applicant

-and-

Royal Canadian Legion

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: May 19, 2009

Citation: 2009 HRTO 660

Indexed as: Vallentyne v. Royal Canadian Legion

1The hearing in this matter is scheduled for June 4, 2009. In a previous Interim Decision, 2009 HRTO 534, the respondent’s adjournment request was denied. I stated as follows, at para. 6:

The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for an adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled. Moreover, in this case the applicant will be prejudiced as she has already made arrangements for her attendance and that of her witnesses at the hearing. Accordingly, the request for adjournment is denied.

2Since then, counsel for the respondent has written the Tribunal to advise that she was not copied on the applicant’s correspondence opposing the adjournment request. Accordingly, she was granted the opportunity to make further submissions. In these submissions, counsel suggests that the prejudice to the applicant of rescheduling the hearing will be minimal. She notes that the Tribunal’s Information Bulletin on scheduling contemplates that rescheduling or adjournment requests will often be necessary. She notes that at the time the hearing was scheduled, her client was not represented, that the adjournment request was made as soon as she was retained and results from unavailability, not a delay tactic. She states:

The respondents have a right to retain counsel of their choice, and as I am already familiar with this matter, it would be of considerable prejudice to the respondent to now have to obtain alternate counsel who has no understanding or familiarity with the matter.

3The Tribunal regrets that the previous decision was made without the respondent’s counsel having received the applicant’s response to the adjournment request. However, there is no right of reply in such circumstances and in any case, the new submissions do not justify the adjournment.

4The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

5When a party makes a decision to retain counsel after the notice of hearing has been issued, their “choice” of counsel is limited by the date previously scheduled. The Application was commenced in September of 2008. The Notice of Hearing was issued on March 11, 2009. The Notice clearly indicated that requests for adjournments would be dealt with in accordance with the Tribunal’s Information Bulletin. Counsel, who practices at a large Toronto law firm, was retained in April 2009. The failure of a party to make arrangements for the hearing does not justify an adjournment: Pantoliano v. Metropolitan Toronto Condominium Corporation No. 570, 2009 HRTO 548.

6After the previous Interim Decision was issued, the respondent filed a Request for Order During Proceedings requesting that the Application be dismissed on a preliminary basis as it does not disclose a prima facie case of discrimination. The respondent requests that this be dealt with in advance of the hearing, and proposes various dates she is available for a half-day hearing prior to June 4.

7Rule 1.7 (g) of the Tribunal’s Rules of Procedure provides that the Tribunal may:

determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined.

The issue raised in the respondent’s Request is best dealt with at the hearing, and there is absolutely no reason for it to be determined in advance. This proceeding is expected to conclude in one day. The parties must come on June 4, 2009, prepared to address this issue, and all other issues raised by the Application. The hearing adjudicator will determine the order in which matters will proceed.

8I am not seized.