Fleming v. Nordic Gaming Corporation, 2011 HRTO 1880

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Fleming

Applicant

-and-

Nordic Gaming Corporation

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: October 18, 2011

Citation: 2011 HRTO 1880

Indexed as: Fleming v. Nordic Gaming Corporation

1This is an Application filed on January 15, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the applicant’s request for an adjournment of the hearing scheduled for October 31, November 1 and 2, 2011.

2The applicant’s request for an adjournment is made in a letter dated October 6, 2011 on the basis that she is unable to attend the hearing for medical reasons. The applicant provides a letter from her treating physician to the Tribunal dated October 4, 2011 stating that that it is recommended that the applicant not attend the scheduled hearing due to medical reasons.

3The applicant indicates on her letter that it has been c.c.’d to the respondent’s counsel by fax along with a reference to the date August 7, 2011, a date which, under the circumstances, does not make a lot of sense. The applicant may have meant October 7, 2011. However, more importantly, the applicant has not provided a Statement of Delivery (a Form 23) to confirm delivery of this request to the respondent. She has not indicated that she has sought the consent of the respondent to her adjournment request or discussed with the respondent alternative hearing dates as is required by the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. The Tribunal has not received submissions from the respondent in response to the request for an adjournment.

DECISION

4The Tribunal’s Confirmation of Hearing Notice states that requests for adjournments will be dealt with according to the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. This Practice Direction provides that requests to reschedule must be made within 14 days of receiving the Notice of Confirmation of Hearing and that the parties need to confer and provide the Tribunal with alternative dates if a rescheduling is being requested. The Practice Direction also states that The Tribunal discourages requests for adjournments outside this 14 day period noting that later requests for adjournment, particularly ones at the last minute, are a significant impediment to fair and timely access to justice. Consequently, the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the Tribunal will not grant adjournments, even when all parties consent. The Practice Direction also states that where a party seeks to adjourn a scheduled hearing, they must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the hearing.

5I am concerned that the applicant has not confirmed delivery of her adjournment request to the respondent and not, it appears, sought the respondent’s consent to her request nor discussed alternate dates with the respondent. I have considered whether to delay this decision until such time that the applicant takes these steps. I do not know if the respondent opposes the applicant’s request. However, under the circumstances, I am of the view that it would be more helpful to the parties for me to make a decision in this matter now given the short time before the hearing is scheduled to begin.

6The applicant’s request for an adjournment is allowed. The applicant has provided a letter from a doctor to indicate that she is medically unable to attend the hearing. I do not find it likely that if the respondent opposed this request that I would deny the applicant’s request to adjourn given the medical information before me.

7The applicant is directed to contact the respondent’s counsel to identify mutually available dates that are within twelve weeks of the original hearing dates. If the parties are unable to identify such dates the Tribunal will set the dates for the hearing without the agreement of the parties.

8The applicant indicates in her October 6, 2011 letter that she is looking for a lawyer to help her as she believes she is not capable of representing herself. If the applicant wishes to retain counsel, counsel will need to be available within the specified twelve week period. I wish to note that it is unlikely that the Tribunal would grant a further adjournment to the applicant on the basis that the applicant is unable to retain counsel or that counsel is unavailable during this period. In my view the applicant has had time to seek counsel to represent her at a hearing given that she has known of the hearing since at least May 2011 when the Tribunal issued its Confirmation of Hearing Notice.

9I also note that the Tribunal issued a Case Assessment Direction on September 23, 2010 directing the applicant to comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure if she plans to introduce documents and witnesses. The applicant has not done so, as yet. She is reminded that failure to comply with Rules 16 and 17 may result in the Tribunal refusing permission to a party to introduce documents or the evidence of witnesses they did not disclose.

ORDER

1. The applicant’s adjournment request is allowed;

2. The applicant is directed to contact the respondent’s counsel to identify mutually available dates within 12 weeks of the original hearing dates and to provide this information to the Tribunal;

3. The applicant is directed to comply with the Tribunal’s Rules for disclosing documents and providing information about intended witnesses and their testimony.