McAdam v. Centre for Early Learning, 2010 HRTO 1468

Human Rights Tribunal of Ontario

B E T W E E N:

Elita McAdam Applicant

-and-

Centre for Early Learning Inc., c.o.b. Denton Place Centre for Early Learning, Julie Cuss and Patricia London Respondents

AND B E T W E E N:

Liam McAdam Applicant

-and-

Centre for Early Learning Inc., c.o.b. Denton Place Centre for Early Learning, Julie Cuss and Patricia London Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: July 6, 2010 Citation: 2010 HRTO 1468 Indexed as: McAdam v. Centre for Early Learning

1A hearing in these matters is scheduled for tomorrow, July 7, 2010. This Interim Decision addresses the respondents’ request for an adjournment.

2By letter dated July 6, 2010, the Tribunal was advised that counsel for the respondents had very recently broken his collarbone and would not be able to attend the hearing. As a result, the respondents requested an adjournment of the scheduled hearing date.

3The applicant objects to the adjournment request. She states that while she is sympathetic with counsel’s situation, this case has been going on for some four and a half years since the complaints were initially filed with the Ontario Human Rights Commission and both she and her son need closure of these matters sooner rather than later. The applicant further states that she has made arrangements to attend the hearing, including pre-paying for child care, and one of her witnesses has booked the day off work. In her view, respondents’ counsel works for a large law firm and another lawyer could step in to replace him for tomorrow’s hearing.

4In response, counsel for the respondents states that the facts in this case are very specific, and it not only would be difficult to bring another lawyer up to speed on the file on such short notice, but would prejudice the respondents’ right to make a full defence to the claims made against them. The respondents further note that the applicant previously had requested an adjournment of a scheduled hearing date, to which the respondents had consented without seeking any costs.

5The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

The HRTO discourages requests for adjournments outside the ten-day period to request rescheduling of a hearing . . . . Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax, copied to the other parties.

6In my view, the type of injury sustained by respondents’ counsel just prior to the hearing represents the kind of extraordinary circumstance that justifies the granting of an adjournment. In light of the extremely short time before the hearing in these matters is scheduled to proceed, in my view it is simply not realistic to expect that another lawyer could be brought up to speed on the case to an extent sufficient to properly represent the respondents’ interests in this proceeding.

7While I appreciate that the granting of this adjournment will impose some cost and inconvenience for the applicant and at least one of her witnesses, I need to weigh this cost and inconvenience against the prejudice to the respondents’ rights if they were compelled to proceed without representation by a properly prepared counsel. I further have taken into account the fact that the applicant previously had requested an adjournment of a scheduled hearing date, to which the respondents had provided their consent without seeking any costs or compensation.

8In all of these circumstances, it is my view that the balance of these competing interests favours the granting of the adjournment requested by the respondents. Accordingly, the hearing currently scheduled for tomorrow, July 7, 2010 is hereby cancelled. The Tribunal will advise the parties as to the new hearing date.