Landra v. David’s Gourmet, 2010 HRTO 260

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Landra

Applicant

-and-

David’s Gourmet

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: February 4, 2010

Citation: 2010 HRTO 260

Indexed as: Landra v. David’s Gourmet

WRITTEN SUBMISSIONS BY

David’s Gourmet, Respondent ) David Ehrenworth,

) Representative

Christopher Landra, Applicant ) Clara Matheson, Counsel

1The purpose of this Interim Decision is to address the respondent’s Request for an Adjournment of the hearing.

2On September 28, 2009, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing is scheduled for February 9 and 10, 2010. The Notice also informed them that requests for adjournments will be dealt with in accordance with the Tribunal’s Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Information Bulletin provides that requests to reschedule a hearing must be made within five (5) days of receiving the Confirmation of Hearing Notice, and requests for adjournments thereafter will only be granted in extraordinary circumstances, such as the illness of a party, witness or representative.

3The respondent’s representative sent the Tribunal an e-mail on January 13, 2010, which requests an adjournment of the hearing on the basis that he did not receive the Confirmation of Hearing Notice. Although sent by mail to the address provided in the Response, the respondent’s representative states that he believes that the Notice was received in error by a neighbouring company, and he was not definitively informed of the hearing dates until January 4, 2010 when he spoke by telephone with a Tribunal staff person. He states that he is unable to attend the hearing on February 9 and 10 because he is already scheduled to attend an arbitration on another matter on those dates.

4The applicant’s counsel filed a letter with the Tribunal on January 25, 2010, which opposes the respondent’s Request. She states that in light of her communications with the respondent’s representative since September 28, 2009, she believes that he did, in fact, receive the Confirmation of Hearing Notice. Specifically, she had several communications with him between October 19 and 22, 2009 with respect to the disclosure of document and witnesses, and on December 23, he sent her an e-mail, which indicated that he was aware of the hearing dates. The applicant’s counsel further submits that a double booking is not an “extraordinary circumstance” as set out in the Tribunal’s Information Bulletin, and that if the hearing is adjourned, the applicant will be required to further postpone a planned surgery.

5The Tribunal is committed to the fair, just and expeditious resolution of the merits of applications before it. I have reviewed the written communications between the applicant’s counsel and the respondent’s representative, as well as the latter’s communications with the Tribunal. Although the respondent’s representative appears to have been aware that a hearing was approaching, and I have some concerns about the lack of detail in his Request, I do not see any definitive evidence that he knew of the exact hearing dates prior to December 23, 2009. As such, I am willing to grant him the benefit of the doubt that he did not receive the Confirmation of Hearing Notice.

6In my view, the failure of a party to receive the Confirmation of Hearing Notice is an extraordinary circumstance as contemplated by the Tribunal’s Information Bulletin.

7The respondent’s Request for an adjournment of the hearing is therefore granted. By no later than February 18, 2010, the parties shall communicate with each other and advise the Tribunal as to their availability for a hearing in this matter. If no communication is received from the parties by that date, the Tribunal may set hearing dates without further consultation with the parties.

8I am not seized of this matter.