Dahl v. Service Employees International Union, 2010 HRTO 534

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joel Dahl

Applicant

-and-

Service Employees International Union, Local 2, Brewery, General & Professional Workers’ Union, J. Cameron Nelson, Brett Goodall, Pat Green, Ron Cheaney, Jane Baxter and Sharleen Stewart

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: March 12, 2010

Citation: 2010 HRTO 534

Indexed as: Dahl v. Service Employees International Union

1A hearing in this matter is scheduled for April 15, 2010. This Interim Decision addresses the respondents’ request for an adjournment and dismissal of the Application without a hearing.

2This Application was at one time processed together with an application against the applicant’s employer. That Application TR-0351-09 has been settled between the parties.

3The respondents in the present Application assert that the settlement of Application TR-0351-09 has resolved the issues involved in the present Application and/or that the applicant is before the wrong Tribunal as the allegations raised relate to an alleged failure in the duty of fair representation under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended. They allege that the Application does not allege any discrimination against them that can be established in the absence of a prior finding of discrimination against the employer.

4In my view, those matters are best addressed at the hearing.

5The 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.

6The 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.

7The reasons for the Request for adjournment do not constitute exceptional circumstances that would justify an adjournment. On the contrary, the Tribunal is required to offer the parties an opportunity to make oral submissions (and if necessary call oral evidence) before finally disposing of an Application.

8Therefore, the respondents’ request can only be granted if an oral hearing takes place.

9The request for an adjournment is denied.