Elyas v. APlus Institute, 2010 HRTO 561

Human Rights Tribunal of Ontario

Between:

Sarah Elyas Applicant

-and-

APlus Institute, Simon Kheifets and Evie Jesin Respondents

Interim Decision

Adjudicator: Mark Hart Date: March 15, 2010 Citation: 2010 HRTO 561 Indexed as: Elyas v. APlus Institute

1A hearing in this matter is scheduled for May 13, 2010. This hearing was scheduled by Notice from the Tribunal dated February 11, 2010 after consultation with all parties. This Interim Decision addresses the applicant’s request for an adjournment.

2By letter dated March 11, 2010, counsel for the applicant wrote to request an adjournment of the May 13, 2010 hearing date on the basis that counsel had just been retained by the applicant and counsel has a civil trial commencing in Superior Court on April 28, 2010 and a second trial commencing on May 31, 2010. Counsel states that on this basis, he will not be available for the entire month of May and the first week of June 2010, but has wide availability from June 8, 2010 onwards. Counsel also requests an extension of the March 12, 2010 date for disclosure and filing of any statement of additional facts and remedy.

3The respondents object to any adjournment and to the requested extension. They note that the applicant has had a considerable amount of time to retain counsel prior to this point, and that while an applicant has the right to choose counsel, the Tribunal’s case law has established that where a hearing date has been set, this right needs to be exercised in light of the previously scheduled hearing date.

4While 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.

5The 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.

6As noted by the respondents, this Tribunal has held that where a party makes a decision to retain counsel after the Notice of Hearing has been issued, their choice of counsel is limited by the date previously scheduled: see Vallentyne v. Royal Canadian Legion, (2009) HRTO 660. This Tribunal has further 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: see Schenk v. Osad Inc., (2010) HRTO 446; *Wilson v. York (Regional Municipality)*, 2009 HRTO 2020.

7In accordance with these authorities, the applicant’s decision to retain counsel after the Notice of Hearing had been issued needed to be exercised in light of the already scheduled hearing date. In this regard, I note that prior to setting the hearing date, the Tribunal sent a letter to the parties on January 15, 2010 offering a considerable number of potential dates for the hearing, and asked the parties to advise as to their availability within 14 calendar days, failing which the Tribunal advised that it may set the hearing date without further consultation. After receiving the respondents’ availability, Tribunal staff left a message for the applicant on February 1, 2010 asking for her availability for the hearing. No response was received from the applicant either to the Tribunal’s letter or to the voicemail message left by Tribunal staff.

8In these circumstances, the applicant’s decision after the Notice of Hearing was issued to retain counsel who is unavailable for the hearing is not the kind of “extraordinary circumstance” so as to justify an adjournment. The request for adjournment accordingly is denied and the hearing will proceed as scheduled on May 13, 2010.

9With regard to the request for an extension to make disclosure and file any statement of additional facts and remedy, the Tribunal is prepared to grant a brief extension until March 19, 2010. The date for the respondents to make disclosure and file their statement of additional facts and response to remedy is similarly extended to April 5, 2010.