Arias v. Centre for Spanish-Speaking Peoples, 2010 HRTO 213

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margarita Arias

Applicant

-and-

Centre for Spanish-Speaking Peoples

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: January 28, 2010

Citation: 2010 HRTO 213

Indexed as: Arias v. Centre for Spanish-Speaking Peoples

1This is an Application filed on July 29, 2008, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in employment on the grounds of age and reprisal. The matter is scheduled for hearing on February 8, 9 and 10, 2010. This Interim Decision deals with the respondent's request for an adjournment and the respondent's failure to disclose the documents upon which it intends to rely and its list of witnesses.

BACKGROUND

2The Tribunal sent the parties a "Confirmation of Hearing" Notice (the "Confirmation of Hearing") on September 28, 2009, scheduling the hearing for February 8, 9 and 10, 2010. At the time, the respondent was represented by counsel.

3On January 15, 2010, the respondent's Executive Director wrote to the Tribunal requesting an adjournment. The applicant was not initially copied. The Executive Director stated that "given the financial cost of legal representation" he has been authorized by the respondent's board to represent the respondent. He submitted that the respondent needed an adjournment because "to adequately prepare for the case I will need time to gather all the necessary documentation, witness [sic], and arguments that I will rely upon at the hearing". He also submitted that two of the witnesses that are "fundamental" to the case are "currently on vacation" and will not return until the middle of February. The Executive Director stated that he would be sending "shortly" the list of documentation that the respondent intends to rely on for its case, list of witnesses and their testimony. As of the date of this Interim Decision, the Tribunal has not received this documentation.

4The applicant wrote to the Tribunal on January 27, 2010, advising that she had received the respondent's adjournment request that day. She opposes the adjournment request.

REQUEST TO ADJOURN

5The Confirmation of Hearing stated that requests for adjournments would be dealt with according to the Tribunal's "Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments". The Information Bulletin provides that requests to reschedule must be made within five days of receiving the Confirmation of Hearing, and goes on to state the following regarding requests for adjournment:

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 the 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.

6In Vallentyne v. Royal Canada Legion, 2009 HRTO 660, at para. 4, the Tribunal stated as follows:

The 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 those 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.

7The Tribunal has held that a party's decision to change their representative after the hearing has been scheduled, witnesses' unavailability due to vacation, and requiring more time to prepare are not "extraordinary circumstances" justifying an adjournment. (See, for example, Vallentyne, supra, Khan v. Toronto (City), 2009 HRTO 820 and Knibbs v. Brant Artillery Gunners Club, 2009 HRTO 1601)

8The reasons the respondent has cited in support of his request relate to matters that were within the respondent's control – changing its representative, gathering documents, witnesses and arguments. The respondent has had ample opportunity to prepare its case and there is no indication that it did not have sufficient notice of the hearing date. Further, while the respondent indicates that two of its witnesses that are "fundamental" to the hearing are currently on vacation and are not expected back until mid-February, those witnesses are not identified and there is no explanation provided as to why the vacations have been taken when the Confirmation of Hearing was issued in September 2009.

9The respondent's request to adjourn is therefore denied.

DISCLOSURE

10The Confirmation of Hearing set out the requirements for disclosure of documents (Rule 16 of the Tribunal's Rules of Procedure ("Rules")) and disclosure of witnesses (Rule 17) and set out the consequences if a party failed to comply with these Rules.

11The applicant delivered to the respondent and filed with the Tribunal the documents upon which she intends to rely and her list of witnesses. The respondent delivered and filed its arguably relevant documents to the applicant and the Tribunal by correspondence dated October 20, 2009. Since then the respondent has not delivered and filed to the applicant and the Tribunal the documents upon which it intends to rely or its list of witnesses and it is directed to do so immediately.

12The respondent is reminded that failure to comply with the Rules and this Interim Decision may result in the Tribunal refusing to admit evidence from a witness and/or documents at the hearing, or taking any other action is considers appropriate.