A.D. v. Club Cranberry Vacations Inc., 2011 HRTO 2135

Human Rights Tribunal of Ontario

B E T W E E N:

A.D.

Applicant

-and-

Club Cranberry Vacations Inc.

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: November 28, 2011

Citation: 2011 HRTO 2135

Indexed as: A. D. v. Club Cranberry Vacations Inc.

1This is an Application filed on June 23, 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 respondent’s request for an adjournment of the hearing scheduled for December 8 and 9, 2011 and that the matter be re-scheduled within three months.

2The respondent’s request for an adjournment is made in a letter dated November 23, 2011. The letter states that the respondent’s principal witness is unable to attend the hearing for medical reasons. The letter states that this witness was the applicant’s direct supervisor and the person responsible for termination of the applicant’s employment and a person with direct knowledge of the matters central to the Application. The letter states that the respondent contacted the applicant and determined that the applicant did not consent to the adjournment request. Attached to the letter is a note dated November 10, 2011 from a physician treating the witness stating that the witness is totally disabled and is advised not to return to work until the New Year.

3The applicant provided an explanation for why she did not consent to an adjournment in a letter dated November 25, 2011. The applicant states that while she is sympathetic to the witness’s situation, the medical information provided by the respondent does not clearly indicate the treatment the witness requires nor whether this treatment would interfere with the scheduled hearing. The applicant further notes that the respondent has not explained why the adjournment request was not made earlier given the witness’s medical situation has been known for some time and that a delay would have an effect on the applicant’s mental health. The applicant states that if the Tribunal was to grant an adjournment it could order that the matter be re-scheduled within six to eight weeks by which time the witness is projected to have recovered. The applicant suggests that the Tribunal could also proceed to hear the applicant’s testimony on the original scheduled hearing dates and allow an adjournment to hear the witness’s testimony.

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.

5The respondent’s request for an adjournment is allowed. Illness of a witness can be an exceptional circumstance that warrants the granting of an adjournment. In this case I am satisfied that the witness in question is fundamental to the respondent’s case given her role and knowledge and it is on this basis that the adjournment request is allowed. I agree with the applicant that the medical information provided by the respondent is not as clear as it may have been but I am not prepared, under the circumstances, to go behind the physician’s determination that the witness is totally disabled as of November 10, 2011 and may not be fit to return to work until the new year.

6The entire hearing will be adjourned. I am not persuaded that it is beneficial to proceed with the applicant’s testimony on December 8 and/or December 9, 2011. It is generally preferable not to conduct a hearing over an extended period of time when not necessary. I am also mindful of the respondent indicating that it has not been able to fully confer with the witness in question because of her illness and so to proceed in December would not, under the circumstances, be fair.

7The respondent is directed to contact the applicant to identify mutually available dates that are within eight weeks of the original hearing dates. I am satisfied that this is a suitable length of time given that the witness is expected to fully recover by the new year. If the parties are unable to identify such dates the Tribunal will set the dates for the hearing without the agreement of the parties.