Marques v. Hurley Corporation, 2011 HRTO 1566

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deolinda Marques

Applicant

-and-

Hurley Corporation, Joe Cunha, Evelyn Hewitt, Manny Silva, Service Employees International Union Local 2, Brewery, General & Professional Workers’ Union, and United Food and Commercial Workers Union Canada, Local 175

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: August 19, 2011

Citation: 2011 HRTO 1566

Indexed as: Marques v. Hurley Corporation

appearances BY

Deolinda Marques, Applicant ) Self-represented

Hurley Corporation, Joe Cunha, Evelyn ) Gavin Clingbine, Representative Hewitt, and Manny Silva, Respondents ) (by teleconference)

Service Employees International Union ) Local 2, Brewery, General & Professional ) Bruce Price, Counsel Workers’ Union, Respondent )

United Food and Commercial Workers ) Marcia Barry and Erin Wallace, Union Canada, Local 175, Respondent ) Counsel

1The purpose of this Interim Decision is to provide written reasons for granting a request by Hurley Corporation, Joe Cunha, Evelyn Hewitt, and Manny Silva to adjourn the hearing, and to provide case assessment directions to the parties.

2The Tribunal scheduled a hearing for August 10, 11 and 12, 2011. All the parties complied with Rules 16 and 17 of the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses, except for Hurley Corporation and its managers/supervisors who are named as individual respondents.

3All the parties appeared in person on the first hearing day, except for Hurley Corporation and the individual respondents. The Tribunal reached their representative, Gavin Clingbine, by teleconference, and he requested an adjournment of the hearing, which was granted. The following are my reasons.

4The Response of Hurley Corporation and the individual respondents was filed in 2009 by Deirdre MacLeod, who identified herself as the Director of Human Resources. In section 3 of the Response, she indicated that the Tribunal should send her information by mail (rather than e-mail or fax).

5On September 22, 2010, Mr. Clingbine, who identified himself as the Director of Human Resources of Compass Group, sent the Tribunal’s Registrar an e-mail, which stated that he was the new contact person. In his e-mail, he did not indicate that there was a new mailing address or that the Tribunal should send him information by e-mail or fax, rather than mail.

6On February 28, 2011, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing is scheduled for August 10, 11 and 12, 2011. The Notice was sent to the care of Mr. Clingbine at Hurley Corporation’s mailing address as set out in the Response.

7The Notice informed the parties that requests for adjournments will be dealt with in accordance with the Tribunal’s “Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments.” The Information Bulletin provides that requests to reschedule a hearing must be made within 14 days of receiving the Notice, and thereafter, requests for adjournments would only be granted in extraordinary circumstances, such as the illness of a party, witness or representative.

8Subsequently, all the other parties delivered the documents that they intend to rely on at the hearing and their witness lists and statements to the attention of Mr. Clingbine by mail, fax or courier.

9When Mr. Clingbine was reached by teleconference on the first hearing day, he requested an adjournment of the hearing on the basis that he never received the Confirmation of Hearing Notice. He stated that the Notice should have been sent to a new mailing address, but he did not have any evidence that he notified the Tribunal of the new address. He also admitted that he received at least some of the disclosure of documents and witnesses from the other parties, but, for unexplained reasons, he appears not to have understood that a hearing had been scheduled.

10The other parties consented to Mr. Clingbine’s adjournment request, but the applicant expressed her belief that he was purposely trying to delay or avoid the hearing, and stated that her consent was conditional on the hearing being rescheduled as soon as practicably possible.

11I reluctantly granted the adjournment request because, notwithstanding a clear lack of due diligence, I accepted Mr. Clingbine’s submission that he never received the Confirmation of Hearing Notice. My view was that the prejudice that would be incurred by Hurley Corporation and the individual respondents if the hearing proceeded in their absence outweighed the lack of due diligence, and qualified as an extraordinary circumstance that justified adjourning and rescheduling the hearing. However, the hearing dates will be rescheduled peremptory to Hurley Corporation and the individual respondents.

12I directed the parties to discuss their mutual availability for at least two sets of consecutive three-day hearing dates amongst themselves, and to provide those sets of dates to the Tribunal’s Registrar as soon as possible.

13Hurley Corporation and the individual respondents have not complied with Rules 16 and 17 of the Tribunal’s Rules on disclosure of documents and witnesses. In the circumstances, I will exercise my authority pursuant to Rule 5.2 of the Tribunal’s Rules to vary the application of the Rules, and require them to comply within two weeks of the date of this Interim Decision. Furthermore, if Mr. Clingbine has not received the disclosure of documents and witnesses from any of the other parties, he should notify them of that as soon as possible.

14Finally, the applicant does not plan to call any witnesses at the hearing. In view of the fact that she is an unrepresented layperson, and at least two of the other parties are represented by legal counsel, it is my duty as the adjudicator to ensure that she has a fair opportunity to present her case. See Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315, at paras. 38-39. In this regard, I would point out to the applicant that she may want to consider calling witnesses to support her allegations.

15Furthermore, Rule 1.7(o) of the Tribunal’s Rules states that in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may advise when additional witnesses may assist the Tribunal. In my view, the appearance of the applicant’s family physician as a witness at the hearing may assist the Tribunal in providing for a fair, just and expeditious resolution of this case.

16A witness may appear voluntarily at the request of a party or be summoned by a party. I draw the parties’ attention to Rule 3, which provides:

3.1 On the request of a party, the Tribunal will provide a summons to witness in blank form and the party may complete the summons and insert the name of the witness.

3.2 Delivery of a summons to a witness is the responsibility of the party who obtained the summons.

17In the circumstances, I will exercise my authority pursuant to Rule 5.2 of the Tribunal’s Rules to vary the application of the Rules, and allow the applicant, if she so chooses, to deliver to the other parties and file with the Tribunal a witness list, and a brief statement summarizing the expected evidence of each witness, within two weeks of the date of this Interim Decision.