HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cyril Pazhaidam
Applicant
- and-
North York General Hospital and Service Employees International Union, Local 1
Respondents
INTERIM decision
Adjudicator: Ian R. Mackenzie
Indexed as: Pazhaidam v. North York General Hospital
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination in employment on the basis of disability. The purpose of this Interim Decision is to address a request by the applicant for an adjournment and a request for an extension of time in meeting disclosure requirements in accordance with the Tribunal's Rules. It also addresses the process for determining a Request for an Order during a Proceeding (RFOP) filed by the respondent, Service Employees International Union, Local 1 (“SEIU, Local 1”).
2On May 6, 2011, the Tribunal issued a Notice of Confirmation of Hearing indicating that the hearing in this matter is scheduled for October 3 and 4, 2011 at the Tribunal’s Hearing Centre in Toronto. The Notice of Confirmation of Hearing stated, if the hearing dates were unsuitable, that parties were required to consult each other with respect to alternate dates and advise the Tribunal in writing within 14 days of the date of the Notice of Confirmation of Hearing if parties were unable to agree on alternate dates. The Notice of Confirmation of Hearing expressly noted that any requests for adjournments will be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments (“Practice Direction”).
3On August 8, 2011, the Tribunal issued an Interim Decision (2011 HRTO 1485) denying a request for an adjournment from the respondent, SEIU, Local 1.
4The respondent North York General Hospital filed an RFOP on August 31, 2011 with regards to the failure of the applicant to meet his disclosure requirements under the Rules of the Tribunal. It submitted that the applicant should be ordered to comply by September 16, 2011, or that the application should be dismissed, or that the hearing should be adjourned until such time as the applicant complied with the disclosure requirements.
5On September 6, 2011, the Tribunal was advised by recently retained counsel that the applicant intended on complying with the Rules of the Tribunal. The applicant requested an extension of time until September 26, 2011 to comply with the disclosure requirements set out in Rules 16 and 17. Alternatively, the applicant asked for an adjournment of the hearing.
6The Tribunal’s Practice Direction states the following on adjournment requests:
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.
7In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 (at para. 4), the Tribunal stated that it is not only the interests of the parties that must be considered in deciding whether or not to grant an adjournment. It is also the duty of the Tribunal to ensure that public resources are used effectively. For this reason, once a hearing has been scheduled, parties have 14 days from the Notice of a Confirmation of Hearing to consult with each other on alternate dates and to advise the Tribunal if no agreement can be reached. Adjournments after this period are granted only under exceptional circumstances.
8The applicant was represented at an earlier stage of the process and the Tribunal was advised on May 10, 2011 that he was no longer represented. The applicant had a sufficient period of time within which to obtain other representation. The Tribunal has 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 or unprepared: Wilson v. York (Regional Municipality), 2009 HRTO 2020 and Schenk v. ODA, 2010 HRTO 446. The applicant has submitted that the delays in retaining counsel were financial and "otherwise". There is nothing extraordinary about the applicant's circumstances. There is therefore no valid reason to grant an adjournment.
9The applicant has requested until September 26, 2011 to comply with the disclosure requirements of Rules 16 and 17 of the Tribunal’s Rules. In the circumstances, the extension is granted. Any possible prejudice to the respondent (which will depend on what is disclosed) can be addressed at the commencement of the hearing.
10The respondent, SEIU, Local 1, has also failed to comply with the requirements set out in Rules 16 and 17. If it intends to call witnesses or submit documents, it must send witness statements and documents with the other parties and the Tribunal immediately. A failure to provide a summary of intended testimony or documents may result in the Tribunal refusing to allow the introduction of evidence by the respondent.
11The SEIU, Local 1 has filed a RFOP, requesting the dismissal of the Application against it, because the applicant has failed to establish a prima facie case. In correspondence received on September 7, 2011, the respondent submitted that this RFOP should be dealt with as a preliminary matter at the hearing. Further submissions on the request will be heard at the commencement of the hearing. . A decision on the request to dismiss the Application against SEIU, Local 1 will be made after the conclusion of the hearing.
ORDER
12The request for an adjournment is denied.
13The applicant is granted an extension to September 26, 2011 to comply with Rules 16 and 17.
14The RFOP of the respondent SEIU, Local 1 will be addressed at the commencement of the hearing.
15I am not seized.
Dated at Toronto, this 8^th^ day of September, 2011
”signed by”
Ian R. Mackenzie
Vice-chair