HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jessica Maciel
Applicant
-and-
Fashion Coiffures Ltd. and Crystal Coiffures Ltd.
Respondents
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Maciel v. Fashion Coiffures
ADJOURNMENT
1The respondents filed a Request for Order During Proceedings (“Request”) on May 21, 2009 to adjourn the hearing scheduled for June 10-12, 2009. In this Request, counsel for the respondents advises that he is scheduled to be in a Preliminary Inquiry June 9-12, 2009 and is, therefore, unavailable to attend the hearing in this matter. For reasons that follow, this adjournment request is denied.
2The Notice of Hearing, which was issued on March 9, 2009, states that adjournment requests will be dealt with in accordance with the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, the relevant portion of which states:
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 alternative dates for the rescheduling of the mediation or hearing. Alternative 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. [emphasis added]
3In Vallentyne v. Royal Canadian Legion, 2009 HRTO 534, the Tribunal held that the unavailability of counsel was not an “extraordinary circumstance” as required by the Bulletin:
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.
4In the subsequent Interim Decision, Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, the Vice-chair reiterated:
When 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.
5In addition, contrary to the direction in the Bulletin, the Request was not made in a timely manner. At the time the Notice of Hearing was issued, the respondents were represented by different counsel. It is not clear when the respondents retained new counsel and whether the conflict existed at the time of his retainer as this information is not set out in the Request. However, in an earlier Request for Order During Proceedings, dated April 27, 2009, counsel to the applicant notes that she had been told by counsel for the respondent that there was a conflict with the dates. Despite apparently knowing there was a conflict much earlier, counsel for the respondent did not communicate this to the Tribunal, or request an adjournment, until advised to do so in the Interim Decision arising from the earlier Request, 2009 HRTO 623.
6The adjournment request is denied. The parties are directed to attend the hearing on the dates specified by the Tribunal and to be prepared to call evidence and make submissions. In the event that counsel is unable to rearrange his other commitment, it is expected that he will assist his client to obtain alternate representation if so asked.
RULES 16.3 AND 17
7In the previous Interim Decision in this matter, the parties were directed to immediately file with the Tribunal (1) lists of documents on which they intend to rely, (2) copies of each document not previously disclosed and (3) witness lists. The applicant complied with this direction, but to date, nothing has been filed by the respondents. The respondents are reminded that they are in breach of the direction of this Tribunal, and are directed to comply immediately. The hearing adjudicator will then determine what, if any, evidence the respondents will be permitted to call in light of the late delivery of this material.
LENGTH OF HEARING
8The material filed by the applicant suggests that this matter may be able to be concluded in two days, rather than the three hearing days set aside for this matter. In the absence of the respondents’ witness list and documents, however, an accurate estimate cannot be made. If the parties are able to agree that the number of hearing days can be reduced, they should advise the Registrar of this, as well as on which of the three scheduled dates they wish to proceed.
9I am not seized of this matter.
Dated at Toronto, this 29^th^ day of May, 2009.
“Signed by”
Naomi Overend
Vice-chair