Terri Lavoie v. Calabogie Resort Inc., 2010 HRTO 330

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terri Lavoie

Applicant

-and-

Calabogie Resort Inc., Tim Karras, Darrin Ullerick and Randy Zimmerling

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: February 12, 2010

Citation: 2010 HRTO 330

Indexed as: Lavoie v. Calabogie Resort

1A Hearing in this matter is scheduled for February 17, 2010. This Interim Decision addresses the applicant’s request that the Tribunal accept her statement of facts and remedy, documents and will say statements delivered on February 10, 2010, beyond the deadlines of October 15, 2009 (statement and documents) and January 27, 2010( witness lists and will says).

2The applicant was represented by a Ms. Mary Thompson who is not licensed to offer legal services. Ms. Thompson sent the applicant’s file to her under cover of a letter dated November 13, 2009 and advised her that she could not represent the applicant. She advised the applicant to send a copy of her file to each party and to advise the Tribunal that she required an extension because of Ms. Thompson’s withdrawal.

3The material was sent to the wrong address and the applicant does not state when she received it.

4However, by January 18, 2010 the Tribunal’s records note that the applicant telephoned the Tribunal and advised that she was no longer represented. She was advised to put this information in writing but she has never done so. She did not seek an extension or an adjournment at that time.

5The next communication from the applicant was from the applicant’s current representative on February 10, 2010 who advised that he had been retained on February 8, 2010. He also submitted a statement of remedies, documents to be relied upon and 13 witness statements.

6While the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments does not specifically apply to Transition Applications, nonetheless the principles set out in this Information Bulletin are equally applicable to Transition Applications.

7The Tribunal’s Information Bulletin provides that requests to reschedule must be made within five (5) days of receiving the Confirmation of Hearing and that thereafter, adjournments will be granted only in extraordinary circumstances. The Information Bulletin states the following regarding requests for adjournments:

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 alternate dates for the rescheduling of the mediation or hearing. Alternate 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.

8The reasons for the Request for an adjournment do not constitute exceptional circumstances that would permit an adjournment. The applicant has known since some time after November 2009 (she failed to specify) that her representative was no longer representing her. She did not follow her former representative’s very clear advice to send the material to the respondents and to advise the Tribunal of her need for an extension.

9The applicant appears to have waited until February 8, 2010 to retain a new representative and did not give any explanation for that delay. I note as well that the respondents also removed their legal counsel in October 2009 and have been acting on their own behalf.

10Finally, I find that the applicant’s representative has demonstrated sufficient readiness to proceed with the hearing on February 17, 2010 by the submission of the evidence on February 10, 2010, assuming that the applicant is permitted to rely upon this evidence.

11I find that despite the applicant’s delay in providing the statements of fact and remedy, making disclosure and submitting will says, it would be fair, just and expeditious to permit the applicant to rely upon this evidence.

12However, that raises the question whether it would be fair, just or expeditious to the respondents to be required to respond to the late information. The respondents are directed to advise the Tribunal by Tuesday, February 16, 2010 whether, in light of the applicant’s late submission of material and the Tribunal’s ruling that it will be accepted, they require an adjournment of the hearing scheduled for February 17, 2010. If any respondent requests, the hearing will be adjourned; if not, the hearing will proceed on February 17, 2010.