Puneet Chadha v. People First Pizza Corp., 2011 HRTO 1871

Human Rights Tribunal of Ontario

B E T W E E N:

Puneet Chadha Applicant

-and-

People First Pizza Corp. Respondent

Interim Decision

Adjudicator: Keith Brennenstuhl Date: October 17, 2011 Citation: 2011 HRTO 1871 Indexed as: Chadha v. People First Pizza Corp.

1This is an Application made under s. 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended. The hearing into this matter is set for November 4, 2011.

2This Interim Decision addresses a Request for Order during Proceedings (“Request”) from the respondent seeking the dismissal of the Application for abuse of process. The basis for the Request is that the applicant has failed to comply with the disclosure requirements set out in Rules 16 and 17 of the Tribunal’s Rules of Procedure (“Rules”). This Interim Decision also addresses an adjournment request by the respondent.

Disclosure and Filing of Documents to be used at the Hearing

3Rules 16 and 17 require the parties to send all arguably relevant documents to each other. In addition, they are to send each other as well as the Tribunal, copies of documents they wish to rely on at the hearing, a list of witnesses and statements describing the witnesses’ intended testimony. Some of these requirements must be met no later than 21 days after the Confirmation of Notice Hearing (“Notice”) is issued; some no later than 45 days prior to the day of the hearing. Both deadlines have now passed. The respondent has complied with the disclosure requirements. As of the date of the Request, October 5, 2011, the applicant has not complied with the requirements.

4Rule 5.6 of the Rules states that when a party fails to deliver materials to another party as required by the Rules the Tribunal may refuse to consider the material or may take any other actions it considers appropriate. Rules 16 and 17 together with Rule 5.6 are meant to ensure that parties know about any documents that are relevant to their case, and also what documents and witnesses they may face at the hearing.

5While I am not prepared to dismiss the Application for abuse of process at this stage, I wish to emphasize that failure to comply with Rules 16 and 17 may result in the Tribunal refusing permission to introduce documents or evidence of witnesses that have not been disclosed in accordance with Rules 16 and 17.

Adjournment Request

6The respondent’s principal witness who was employed by the respondent at its operation in London, Ontario is now residing in the United States. She has applied to USCIS for an adjustment of her status in the United States. Apparently, any adjustment of status applicant who leaves the United States without an Advance Parole is automatically considered abandoning her/his application for adjustment of status and is generally not allowed back into the United States.

7The respondent has just learned that the witness has not yet received the required Advance Parole from the USCIS and until such time it is granted, the witness is unable to return to Canada for the November 4, 2011 hearing or otherwise. The respondent advises that the witness applied in early August 2011 after having been previously informed by USCIS that she would receive the Advance Parole within 30 days of her application. The witness has now been advised by USCIS that it will take 60 to 90 days to receive the Advance Parole. The USCIS has recently refused to allow the witness to return to Canada without the Advance Parole even for the death of one of her family members

8The respondent indicates that the witness is its key witness. The Application arises out of a job interview the witness conducted with the applicant and her decision not to offer the applicant employment with the respondent.

9While there is a possibility that the witness may be granted the Advance Parole in time for the November 4, 2011 hearing date, the respondent is nevertheless requesting the adjournment at this time. It is the respondent’s position that it is imperative that in order to have a fair, just and expeditious resolution to the Application, the witness be present to testify at the hearing of this Application. The applicant objects to an adjournment because he has already postponed his vacation on account of the hearing.

10Adjournment requests are not granted automatically and will only be allowed in extraordinary circumstances. I agree that given the witness’ role in the events underlying this Application she will be important for the adjudication of this matter. The respondent cites a legal impediment that for all practical purposes makes it unlikely that the respondent’s key witness would be available for the hearing on November 4, 2011. In my view, this is an extraordinary circumstance that warrants an adjournment. While the applicant has objected based on the fact that he had already postponed his vacation for the November 4, 2011 hearing date, I find that there is no serious prejudice to the applicant in granting the adjournment.

11The respondent shall notify the Registrar as soon as the witness has been issued the Advance Parole and the Registrar shall re-schedule the hearing for as soon as possible thereafter.

Order

12The respondent’s Request seeking dismissal of the Application for abuse of processes is denied. The hearing into this matter scheduled for November 4, 2011 is adjourned in accordance with the terms set out above.