McDonough v. Brown, 2011 HRTO 2078

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexander McDonough Applicant

-and-

Wanda Brown Respondent

INTERIM DECISION

Adjudicator: Catherine Bickley Date: November 16, 2011 Citation: 2011 HRTO 2078 Indexed as: McDonough v. Brown

BACKGROUND

1This Interim Decision addresses the applicant’s request for an adjournment of the hearing currently scheduled for November 22 and 23, 2011. The Interim Decision also provides directions regarding the applicant’s failure to comply, as of the date of this Interim Decision, with his disclosure obligations under Rules 16.2, 16.3, and 17.2.

2The applicant, Alexander McDonough, alleges that the respondent, Wanda Brown, violated the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), by subjecting him to sexual solicitation or advances, discriminating against him on the basis of age, and threatening reprisals when he pursued his rights under the Code. At the time of the alleged events, Ms. Brown was Mr. McDonough’s manager at the coffee shop where they both worked.

3On June 13, 2011, the Tribunal sent the parties a Notice of Confirmation of Hearing [“the Notice”] informing the parties of the November 2011 hearing dates.

4On November 8, 2011, the Tribunal received the following letter from the applicant:

To whom it may concern,

I herby [sic] make a request for an adjournment on the HRTC [sic] hearing, scheduled for November 22^nd and 23^rd, 2011.

I am attending my second year of the Civil Engineering program at Georgian College, in Barrie, Ontario. It would be unfeasible for me to neglect the 12 hours of classes and assignments, for those 2 days. It was impossible for me to foresee what my exact schedule would have been weeks ago.

I look forward to concluding this affair, but would inquire that it be done when my study schedule will not suffer. Ideal dates could fall anytime during reading weeks, Christmas vacation, Spring Break or when school is out for the summer.

I do realize the short notice for this request. Considering the scope of my complaint, I am hopeful that the Respondent and the HRTC alike, will deem my postponement acceptable.

Thank you for your consideration, Alex McDonough

5As of the date of this Interim Decision, the Tribunal has not received any response from the respondent to the applicant’s adjournment request.

DECISION

6The applicant’s request to adjourn the scheduled hearing dates is denied. The applicant is directed to comply with his disclosure obligations as set out in Rules 16 and 17 of the Tribunal’s Rules of Practice.

ANALYSIS

The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments states:

The HRTO’s approach to scheduling and rescheduling hearings is designed to give the parties a fair opportunity to obtain suitable dates.

When a hearing is scheduled, the HRTO will issue a Confirmation of Hearing setting the date(s) for the hearing, as well as the location and start time.

If rescheduling is required, the parties are encouraged to agree on mutually available dates that are within 12 weeks of the original hearing date(s). If the parties are able to agree on alternative dates, one party must advise the HRTO Registrar in writing within 14 days of the Notice of Confirmation of Hearing. The HRTO will make every effort to schedule the hearing for dates provided by the parties.

If the parties are unable to agree on alternative dates, the party asking that the hearing be rescheduled must contact the HRTO Registrar in writing, copied to the other parties, and provide five alternative dates (or blocks of dates if the hearing is scheduled for multiple days) that are within 12 weeks of the originally scheduled hearing date(s). This must be done within 14 days of the date of the Notice of Confirmation of Hearing. The HRTO will contact the other parties to try to find mutually agreeable dates. If, after a reasonable number of attempts, the parties are unable to agree on dates, the HRTO will set the dates for the hearing without agreement of the parties.

Requests for Adjournments

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or 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.

7The reason given by the applicant for his adjournment request is that it would be “unfeasible” for him to miss 12 hours of classes. He also states that he could not foresee his exact schedule “weeks ago”.

8The Notice was emailed to the parties on June 13, 2011.

9While the applicant may not have known his exact schedule for the coming school year in June, it was clear from the Notice that the hearing was scheduled to be held on two week days during the school year. As set out in paragraph 3 of the Practice Direction, above, it was open to the applicant to contact the respondent’s counsel in June to discuss mutually agreeable alternative dates that did not conflict with the applicant’s educational commitments. Instead, the applicant waited until two weeks before the scheduled hearing dates to request an adjournment and rescheduling of the hearing.

10As noted in Monaghan v. JoAnne’s Place Health and Beauty Products Inc., 2011 HRTO 1577, at para 15, it is necessary for an individual who has filed an application under the Code,

… to make themselves available to proceed with litigation that they themselves have commenced even though this may conflict with their work, education or other responsibilities.

11I am not convinced that missing 12 hours of classes in a multi-year academic program constitutes the type of exceptional circumstance in which an adjournment is appropriate. Further there was a procedure available to the applicant through which a change of dates for the hearing could have been arranged in June of this year.

12Accordingly, the applicant’s request for an adjournment is denied and the hearing will proceed on November 22^nd and 23^rd, 2011.

13I note that as of the date of this Interim Decision, the Tribunal has received the respondent’s witness list and hearing document brief (together with confirmation of service on the applicant), but has not received the applicant’s witness list, list of documents upon which the applicant intends to rely, or copies of the documents on the applicant’s list of documents. Nor has the Tribunal received from the applicant confirmation that he has served these documents and lists on the respondent or her counsel.

14Disclosure obligations are outlined in Rules 16 and 17 of the Tribunal’s Rules of Procedure, which set deadlines for producing documents, witness lists and witness statements of intended evidence. Failure to comply with these obligations may result in the Tribunal ruling that a party may not rely on those documents or witnesses in the hearing.

The applicant is directed to comply with his disclosure obligations immediately.