Pfeiffer v. Margaret Laurence Housing Co-operative, 2011 HRTO 2207

Jeffrey Pfeiffer

Applicant

-and-

Margaret Laurence Housing Co-operative Inc. and Merle Pierre

Respondents

INTERIM decision

Adjudicator: Maureen Doyle

Date: December 7, 2011

Citation: 2011 HRTO 2207

Indexed as: Pfeiffer v. Margaret Laurence Housing Co-operative

wRITTEN SUBMISSIONS

Jeffrey Pfeiffer, Applicant ) Renée Lang, Counsel

Margaret Laurence Housing )

Co-operative , Merle Pierre, ) Murray Klippenstien, Counsel

Respondents )

INTRODUCTION

1This is an Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant seeks the adjournment of the hearing scheduled for January 4, 5 and 6, 2012. The adjournment request is denied.

BACKGROUND

2The Application was filed with the Tribunal on September 16, 2010.

3On June 17, 2011, the Tribunal sent the parties a Notice of Confirmation of Hearing. That Notice scheduled the hearing for January 4, 5 and 6, 2012. It noted, on the first page, that requests for adjournment would be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments available on the Tribunal’s website.

4By letter dated November 18, 2011, the applicant wrote to the Registrar and copied to the respondents, a Request for an adjournment of the scheduled dates. The letter indicated that the applicant’s “key witness” would not be in the province for the dates scheduled for the hearing, though he had previously advised that he would be available. While the letter does not address the question of a subpoena, I understand the Request to have been made absent any subpoena compelling the witness’ attendance at the hearing. The letter indicated that counsel for the Respondents consents to the Request for an adjournment.

5In a Case Assessment Direction (“CAD”) dated November 29, 2011, the parties were directed to provide submissions on the question of whether the witness could provide his testimony by telephone.

6The parties have provided their submissions regarding the possibility of having the witness testify by telephone. Briefly, the applicant indicates that the witness is currently out of the province and unreachable by telephone, and in any event, the applicant submits that the witness will provide important evidence upon which a factual determination may turn and it therefore should be provided in person. The respondent submits that in accordance with Zeividavi v. Catholic Immigration Services, 2011 HRTO 406, testimony in person is to be preferred “where the credibility of the witness is a significant issue or where that witness’ evidence is extensive or key to the proceedings”.

DECISION

7The Practice Direction on requests to adjourn or reschedule reads as follows:

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.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.

8In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

9The unavailability of this witness is not an exceptional circumstance which would warrant an adjournment at this stage and the hearing will proceed as scheduled.

10The parties will arrive at the hearing prepared to proceed with the entirety of their case, but for the evidence of the applicant’s witness and closing submissions. I am mindful of the parties’ concerns regarding the importance of receiving the testimony of the applicant’s witness in person, and therefore, at the conclusion of the prepared portion of the parties’ cases, the parties will be canvassed in order to fix a date to reconvene for the testimony of the applicant’s witness and closing submissions.

11The applicant’s letter seeking an adjournment was dated the same day as the deadline for the parties to deliver and file the list of documents upon which they intend to rely and their witness list and statements. In the event that the Request for an adjournment was not granted, the letter requested an extension of the deadline for production. The parties are granted an extension of their deadline. The materials are due seven days from the date of this Interim Decision.

12I am not seized of this matter.

Dated at Toronto, this 7^th day of December, 2011

”signed by”___________

Maureen Doyle

Vice-chair