Khardas v. Aiello, 2010 HRTO 599

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Khardas

Applicant

-and-

David Aiello

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: March 18, 2010

Citation: 2010 HRTO 599

Indexed as: Khardas v. Aiello

1This is an Application filed on June 18, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The Application alleges discrimination in employment on the grounds of sexual solicitation or advances and reprisal. The matter is scheduled for hearing on March 23, 2010. This Interim Decision deals with the respondent's request for an adjournment.

REQUEST TO ADJOURN

2The Tribunal sent the parties a "Confirmation of Hearing" Notice (the Confirmation of Hearing") on November 20, 2009, scheduling the hearing for March 23, 2010. At the time, the respondent was represented by counsel.

3The respondent's counsel has requested, in a letter dated March 17, 2010, an adjournment of the hearing on the basis that the respondent's company is subject to an audit committee meeting on March 23, 2010 beginning at 10:00 A.M. and as company president the respondent is required to attend. As of the date of this Interim Decision, the Tribunal has not received any response to this request for an adjournment from the applicant.

4The Confirmation of Hearing states that requests for adjournments will 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 Confirmation 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 the 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.

5The respondent's request for an adjournment is denied. The respondent has known of the date of the hearing since November 2009. To come forward less than a week before the scheduled hearing to state, in the briefest terms, that he has a conflict because of a scheduled business meeting does not constitute an extraordinary circumstance that warrants an adjournment. No reason has been provided to indicate why this request for an adjournment has been made at such a late date or, more importantly, why this other event should be afforded greater consideration than the hearing scheduled before the Tribunal.

6As noted, the Tribunal has not, as yet, received a response from the applicant to the respondent's adjournment request. However, I do not need to know whether the applicant opposes the respondent's request or not in this instance. As noted in Vallentyne v. Royal Canada Legion, 2009 HRTO 660, at para. 4:

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 those 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.

7The respondent's counsel also notes in his request for adjournment that the applicant has not disclosed documents as required under Rule 17 of the Tribunal's Rules of Procedure. He states that he is assuming that the applicant will not be relying on documents at the hearing. However, it is somewhat ambiguous as to whether the respondent wishes to rely on the failure of the applicant to abide by Rule 17 as a further reason for granting adjournment, in effect arguing that if the applicant wanted to rely on documents, an adjournment would be appropriate in order to allow the applicant time to do so. If this is indeed an argument, the applicant is putting forward it is not persuasive given that it is speculative as to whether the applicant will be relying on any documents.

8For all of the above reasons the respondent's request is denied.