HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kristine Schenk
Applicant
-and-
OSAD Inc., David Woodwark and Gregory Nixon
Respondents
INTERIM DECISION
Adjudicator: Faisal Bhabha
Indexed as: Schenk v. OSAD
1This is an Application filed on March 17, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges sexual harassment and sexual solicitation or advances in employment. The matter is scheduled for hearing commencing on March 10, 2010. This Interim Decision deals with the applicant’s request for an adjournment, and the personal respondent’s request for disclosure.
BACKGROUND
2The Tribunal sent the parties a “Confirmation of Hearing” notice on October 29, 2009, scheduling the hearing for five days, March 10, 11, 12, 2010 and April 6 and 7, 2010, in London.
3On November 18, 2009, the corporate respondent produced a list and copies of all arguably relevant documents in its possession in accordance with Rule 16 of the Tribunal’s Rules. On January 22, 2010, the corporate respondent produced a list of witnesses and a supplemental list of documents on which it intends to rely, in compliance with Rules 16 and 17.
4On November 18, 2009, the applicant produced her document brief in accordance with Rule 16. No further disclosure was received, and she has not, to date, complied with Rule 17, which requires disclosure of witness names and summaries of their anticipated evidence.
5On January 22, 2010, the personal respondent produced his list of witnesses and document brief in accordance with Rules 16 and 17.
6On February 8, 2010, Cézanne Charlebois contacted the Tribunal advising that she had recently been retained by the applicant for the purposes of acting as counsel in these proceedings.
7On February 9, 2010, the applicant, through counsel, filed a Request for Order During Proceedings (Form 10) seeking an adjournment of the scheduled March hearing dates and requesting that the hearing commence on the April dates. The reasons given in support of the request were that counsel had just recently been retained, mistakenly believing that the hearing was not scheduled to begin until April and requiring more time to adequately prepare for the hearing. Counsel stated that she required additional time to assemble the file and obtain all of the information relating to the claim.
8The personal respondent filed a Form 11 indicating that he takes no position on the order requested. The corporate respondent filed a Form 11 indicating that it consents to the adjournment on the basis that applicant’s counsel may require additional time to prepare for the hearing.
9On February 9, 2010, a further Request for Order During Proceedings (Form 10) was filed by the corporate respondent requesting an order that the applicant, along with two third parties, Peter Rocca and Karl Sloman, produce for inspection copies of all documents in their possession, control or power which relate in any way to the website: www.rushlady.com. The corporate respondent delivered the Request to the parties as well as the affected third parties. Responses to the Request were due yesterday, February 24, 2010. At the time of writing, a Form 11 had been filed only by the personal respondent, agreeing with the request.
REQUEST TO ADJOURN
10The 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 Notice 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 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.
11In Vallentyne v. Royal Canadian 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 these 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.
12The Tribunal has held that a party’s decision to retain counsel after the hearing has been scheduled is not an “extraordinary circumstance” justifying an adjournment simply because counsel is unavailable or unprepared: Wilson v. York (Regional Municipality), 2009 HRTO 2020.
13The only reason cited in support of the applicant’s request relates to matters that were entirely within her control: retaining counsel with sufficient time to prepare for the hearing. There is no indication that the applicant did not have sufficient notice of the hearing date or that the issues to be determined have changed, necessitating additional time. Disclosure deadlines are now long overdue and the applicant has failed to produce a witness list and evidence summaries. Any additional documents counsel now wishes to gather in support of the applicant’s case will only be admitted and considered at the Tribunal’s discretion, as discussed below.
14It is clear that there is nothing extraordinary about the applicant’s circumstances. There is no valid reason to grant an adjournment.
DISCLOSURE
15Disclosure obligations are outlined in Rules 16 and 17, which set deadlines for producing documents, witness lists and witness will-say statements. According to the Rules, no party may rely on or present any document or witness not disclosed in accordance with Rules 16 and 17 prior to the hearing, except with the permission of the Tribunal.
16The parties are reminded of their obligation to disclose all arguably relevant documents. The issue of the applicant’s alleged involvement in the sex trade industry is one that is alive in this case. The respondents have alleged that the applicant, along with her fiancé, was engaged in marketing sex services on the internet. The respondents have produced copies of pages from a website, www.rushlady.com, which allegedly depict the applicant offering a variety of escort services, including sex. The applicant denies the allegation. If the any party has any document in their possession related to the alleged website, they are under an obligation to disclose such documents.
17Regarding the corporate respondent’s request for a production order against two third parties, Karl Sloman and Peter Rocca, both of these individuals are named on the corporate respondent’s List of Proposed Witnesses. If the respondent is concerned that the witnesses will fail to attend or will not voluntarily disclose documents relevant to these proceedings, the respondent is at liberty to serve them with a summons (Form 24) pursuant to Rule 3 of the Tribunal’s Rules. The summons form provides space for a list of documents the witness is required to produce at the hearing.
18According to Rules 3.1 and 3.2, responsibility for obtaining a blank summons, completing it and delivering it to a witness rests with the party requesting the summons.
ORDER
19The Tribunal orders that:
The request for an adjournment is denied. The hearing shall proceed as scheduled on March 10, 2010, beginning with the applicant’s case. The respondents are not likely to be expected to call any evidence on the first day of the hearing.
If they have not already done so, the parties must comply with their disclosure obligations under Rules 16 and 17 as soon as possible, failing which a party may be prevented from introducing any evidence not previously disclosed or from calling any witnesses at the hearing.
Dated at Toronto, this 25th day of February, 2010.
“signed by”
Faisal Bhabha
Vice-chair