Andrew Evelyn v. Aux Delices De Bayview and Roy Chan, 2011 HRTO 1160

Human Rights Tribunal of Ontario

B E T W E E N:

Andrew Evelyn

Applicant

-and-

Aux Delices De Bayview and Roy Chan

Respondents

Interim decision

Adjudicator: Keith Brennenstuhl

Date: June 14, 2011

Citation: 2011 HRTO 1160

Indexed as: Evelyn v. Aux Delices De Bayview

1A hearing into this matter is scheduled to proceed on Wednesday, June 15, 2011. This Interim Decision addresses the respondents’ request for an adjournment of the hearing.

2By letter dated April 27, 2011, the Tribunal was advised that the respondents were requesting an adjournment because the respondents’ key witness will be out of the country. The request does not provide the dates as to when the witness would be leaving the country or when the witness would be returning to the country. It does not provide the reason for the witness’ absence from the country. The request for the adjournment refers to the hearing as being “set down to be heard on June 11, 2011”.

3According to the respondents, the applicant does not oppose the request for an adjournment.

4The Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments provides that requests to reschedule must be made within five days of receiving the Notice of Hearing. The Information Bulletin states 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.

5In 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.

6The parties were advised of the hearing date by letter from the Tribunal dated January 18, 2011. This hearing date was set after consultation with the parties.

7The respondents have known about the hearing date for several months now, and the date was set in consultation with him. It is unclear to me why it was not known well prior to April 27, 2011, that his key witness was not available to attend the hearing, why the witness was not put under summons, and why this issue was not raised at a much earlier time.

8In normal circumstances, there would be no basis for granting this adjournment request. A witness being out of the country, in and of itself, does not amount to extraordinary or exceptional circumstances that justify the rescheduling of the hearing at the stage this request was made. However, in these particular circumstances, the Request was received by the Tribunal on April 27, but due to an administrative error was not brought forward for a decision until this late date. There is now a potential unfairness to proceeding in these specific circumstances. Accordingly, the adjournment request is granted.

9The parties should contact the Tribunal’s Registrar immediately in order to reschedule this matter at the earliest opportunity.