Kos v. TRW Canada Ltd., 2011 HRTO 1358

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edward Kos

Applicant

• and-

TRW Canada Ltd.

Thompson Products Employees Association

Respondents

INTERIM decision

Adjudicator: Maureen Doyle

Date: July 19, 2011

Citation: 2011 HRTO 1358

Indexed as: Kos v. TRW Canada Ltd.

wRITTEN SUBMISSIONS

Edward Kos, Applicant ) Wade R. Poziomka, Counsel

INTRODUCTION

1This is an Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant seeks an adjournment of the hearing scheduled for July 26, 2011. The adjournment request is denied. He also seeks a “stay of proceedings for a period of 6 months”. The request for a “stay” is considered within the Tribunal’s Rules of Procedure as a request for deferral. The request for a deferral is also denied.

BACKGROUND

2The Application was filed with the Tribunal on March 15, 2010.

3On February 25, 2011, the Tribunal sent the parties a Notice of Confirmation of Hearing. That Notice scheduled the hearing for July 26, 2011. It noted, on the first page, that requests for adjournment would be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments available on the HRTO’s website. Further, on April 4, 2011, a Notice of Location of Hearing was sent to the parties, advising the parties of the location for the hearing. This notice included the same information regarding requests for adjournment as was included on the first page of the Notice of Confirmation of Hearing.

4On July 15, 2011, the Tribunal received a Request for an Order During Proceedings from Mr. Wade R. Poziomka, in which he indicates that while his firm has been retained to act for the applicant to proceed with civil action in “this matter” on the applicant’s behalf, it has not yet been retained in relation to the matter before the Ontario Human Rights Tribunal. He advises that the applicant seeks an adjournment of the July 26, 20011 hearing and he seeks a “stay of proceedings for a period of 6 months”. He advises that his firm is in the process of issuing a statement of claim to commence an individual claim before the Superior Court on behalf of the applicant and that it is consulting with other retired employees of the respondent employer regarding the possibility of a class action. He also indicates that the applicant is “exploring his rights pursuant to the collective agreement and grievance and arbitration process”. He also indicates that the applicant would like to “explore settlement” with the respondents. Finally, he indicates he has consulted the respondents and has been advised that the respondent employees association, Thompson Products Employees Association, consents to the request, but that the respondent employer, TRW Canada Ltd. does not.

DECISION

THE ADJOURNMENT REQUEST

5The Practice Direction on requests to adjourn or reschedule reads as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.

6In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

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.

7The applicant indicates that he is considering other legal action regarding this matter and that he would like to “explore” settlement. He has not, however, described any exceptional circumstances. As there are no exceptional circumstances that warrant the adjournment, it is denied. The hearing will proceed on the date scheduled.

REQUEST TO DEFER

8Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application in accordance with its rules. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

9The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

10In this case, the applicant has not indicated that there is an ongoing grievance under a collective agreement based on the same facts and issues. Rather, he indicates merely that he is “exploring” his rights pursuant to the collective agreement.

11The applicant also indicates that he intends to pursue a civil action and that consultation is underway regarding the possibility of a class action. The applicant does not request deferral pending the outcome of another legal proceeding. Further, the applicant has not addressed the question of any possible impact of s. 34(11) of the Code on this Application.

12Finally, the applicant advises that he wishes to “explore” the possibility of settlement of this matter.

13Since (i) there is not yet an ongoing grievance under a collective agreement, (ii) the applicant is not requesting deferral of this matter pending the outcome of another legal proceeding, (iii) this matter is already at an advanced stage at the Tribunal, having a hearing date already scheduled, and (iv) the Tribunal makes available mediation/adjudication where parties consent to participate, I find it is not appropriate to defer this Application. In the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application.

OTHER

14Should the applicant commence a civil action, which the applicant indicates in the Request for an Order During Proceedings is a possibility, the parties are directed to be prepared to make submissions regarding any possible impact of s. 34(11) on this Application at the first day of hearing. The parties are also directed to be prepared to continue with the hearing of this Application following any such submissions.