HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Broughton
Applicant
-and-
Tutti Frutti and Tom Osmond
Respondents
INTERIM Decision
Adjudicator: Ian R. Mackenzie
Date: December 6, 2011
Citation: 2011 HRTO 2195
Indexed As: Broughton v. Tutti Frutti
[1] Christopher Broughton filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination in employment on the basis of sex and on sexual solicitation or advances. This Decision addresses an adjournment request from the applicant; his failure to comply with the Tribunal’s Rules on disclosure; and the requirement that he advise the Tribunal by 12:30 p.m. on December 7, 2011, whether he intends to attend the hearing scheduled for December 8, 2011.
Request for Adjournment
[2] The hearing of the Application was originally scheduled for September 22, 2011. On June 3, 2011, the respondents requested that the hearing be rescheduled because of a scheduling conflict. On August 2, 2011, the Tribunal rescheduled the hearing for December 8, 2011.
[3] On November 16, 2011, I issued a Case Assessment Direction (“CAD”) relating to the failure of the applicant to meet his disclosure requirements under the Tribunal’s rules (discussed below). On November 30, 2011, a further CAD was issued.
[4] The applicant sent an email requesting an adjournment of the hearing on December 2, 2011. He stated in his request that he was not available on December 8, 2011 and that he was available in the entire month of January of 2012. He provided no reason for not being available for the hearing and no reason for his delay in requesting the adjournment.
[5] The respondents object to the adjournment request.
[6] The 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:
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.
[7] In this case, the applicant was aware of the hearing date in August (when the Notice of the Rescheduled Hearing was sent to him). He was reminded of the date of the hearing in the CAD issued on November 16, 2011. In spite of his knowledge of the date of the hearing, he did not request an adjournment until less than a week prior to the hearing date. He has provided no reason for the delay in requesting an adjournment and no reason for not being available for the hearing date. The request does not demonstrate any exceptional circumstances that would justify an adjournment.
[8] In the absence of an exceptional circumstance, the request for an adjournment is denied.
Failure to comply with disclosure requirements
[9] The respondents have met their disclosure requirements under the Rules.
[10] The applicant was directed to comply with the disclosure requirements set out in the Tribunal rules in a CAD issued on November 16, 2011. In the CAD, the requirements for meeting the disclosure requirements were set out for the applicant as follows:
The applicant is required to file a list and copies of any documents that he intends to rely on and summaries of the statements of any witnesses he intends to call at the hearing scheduled for December 8, 2011.
If he does not intend to rely on any documents he must communicate this to the respondents (with a copy to the Tribunal).
If the applicant intends to call a witness or witnesses, other than himself, he must provide the name(s) of the witness(es) and a summary/summaries of the intended testimony.
If the only witness is himself and he intends to rely solely on the statements contained in his Application, he must communicate this to the respondents (with a copy to the Tribunal). If there is evidence he wishes to give that is not summarized in his Application, he must provide a summary of that additional evidence to the respondents (with a copy to the Tribunal).
[11] The consequences of failing to meet these obligations under the Rules were set out in the CAD as follows:
Rule 16.4 provides that an applicant or respondent cannot submit a document at the hearing that has not been provided in advance of the hearing, except with the permission of the adjudicator.
Rule 17.4 provides that an applicant or respondent cannot call a witness to testify if a summary of that evidence was not provided in advance of the hearing, except with the permission of the adjudicator.
If the applicant relies on his Application as his summary of evidence, he cannot testify about additional matters, except with the permission of the adjudicator.
[12] The applicant did not comply with the Rules, as ordered in the CAD. Accordingly, the applicant is not permitted to file additional documents or call any witnesses other than himself at the hearing scheduled for December 8, 2011.
Deemed abandonment if applicant does not attend the hearing
[13] In a CAD issued on November 30, 2011, the applicant was told that he was required to advise the Tribunal by December 5 at 4:30 p.m. if he intended to attend the hearing. He was warned that if he did not contact the Tribunal by that time, the Application might be dismissed as abandoned.
[14] The applicant contacted the Tribunal on December 2, 2011, to request an adjournment (see above). In his request, he indicated that he was not available on the hearing date.
[15] The request for an adjournment has been dismissed. Although the applicant has stated that he is not available on the scheduled hearing date, I cannot conclude with certainty that he will not attend the hearing.
[16] The applicant is required to advise the Tribunal by 12:30 p.m. on Wednesday, December 7, 2011, whether he intends to attend the hearing. If he fails to confirm his attendance by this time, the Application will be dismissed as abandoned.
[17] The Tribunal orders the following:
• The request for an adjournment is denied;
• The applicant will not be permitted to file additional documents or call any witnesses other than himself at the hearing scheduled for December 8, 2011; and
• If the applicant does not confirm his attendance at the hearing by 12:30 p.m. on Wednesday, December 7, 2011, the Application will be dismissed as abandoned.
Dated at Toronto, this 6th day of December, 2011.
“Signed by”
Ian R. Mackenzie
Vice-chair