Valiani v. Canadian Labour Congress, 2011 HRTO 1886

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Salimah Valiani Applicant

-and-

Canadian Labour Congress Respondent

INTERIM DECISION

Adjudicator: Ian R. Mackenzie Date: October 19, 2011 Citation: 2011 HRTO 1886 Indexed as: Valiani v. Canadian Labour Congress

WRITTEN SUBMISSIONS

Salimah Valiani, Applicant ) Self-represented Canadian Labour Congress, Respondent ) James L. Shields, Counsel

1Salimah Valiani, the applicant, has requested an adjournment of a hearing of her Application scheduled to commence on November 23, 2011. Her Application was filed on March 31, 2009. The respondent opposes the request.

2On October 12, 2011, the applicant requested an adjournment because she was in the process of changing counsel and the counsel she is hoping to retain is not available for the scheduled dates of hearing. She submitted that she was changing counsel to ensure “adequate representation”. She is concerned that there will not be adequate preparation time for her and her new counsel.

3The hearing of this Application was originally scheduled for July 25, 2011. The applicant requested an adjournment on May 20, 2011, because she had retained new counsel who was not available on the scheduled hearing dates. The respondent consented to the adjournment and the matter was rescheduled for September 27, 2011. The hearing dates were adjourned by the Tribunal because of a scheduling conflict and the new hearing date of November 23, 2011, was set with the agreement of the parties. The Notice of Hearing setting out the November 23, 2011 hearing date was sent by the Tribunal to the parties on July 22, 2011.

4The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments (the “Practice Direction”) provides that requests to reschedule must be made within 14 days of receiving the Confirmation of Hearing and that outside that time adjournments will be granted only in extraordinary circumstances.

5The respondent submitted that the changing of counsel is not an exceptional circumstance as contemplated by the Practice Direction. The applicant has been aware of the scheduled hearing dates for months. In addition, the respondent submitted that it is in both the respondent’s interest and the public interest that the Application be finally disposed of. The Application was filed in 2009 and the allegations relate to events that happened between three and six years ago.

ANALYSIS AND FINDINGS

6This Application was filed on March 31, 2009. As a result of two adjournments, the hearing is now scheduled for the end of November of 2011. Any further adjournment would likely lead to hearing dates sometime in 2012. The Human Rights Code, R.S.O. 1990, c. H.19, as amended, provides that the Tribunal shall dispose of applications by adopting procedures and practices that “offer the best opportunity for a fair, just and expeditious resolution” of the merits of an application (section 40). The fair, just and expeditious resolution of this Application requires that I deny the adjournment request.

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. The Tribunal is also obligated 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 Tribunal’s Practice Direction states the following on adjournment requests:

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.

9The 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. OSAD, 2010 HRTO 446. Nor has the decision to change counsel been generally recognized as an extraordinary circumstance justifying an adjournment: Khan v. CCSI COMPUCOM Systems, 2009 HRTO 1697, and Leone v. Solie, 2010 HRTO 855.

10The parties were notified of the rescheduled hearing date in July 2011. Contrary to the Tribunal’s Practice Direction, the applicant’s request for an adjournment was not made in a timely manner. The applicant’s sole reason for the adjournment request is a change in counsel. There is nothing extraordinary about the applicant's circumstances. It is her right to change counsel, but that action should not be allowed to have an adverse impact on timely access to justice. In addition, the applicant has already obtained one adjournment (with the consent of the respondent) for the same reason.

11The request for an adjournment is denied.

12I am not seized.