HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mario Hawco

Applicant

-and-

Peel Express, Division of Armbro Transport Inc.,

Hugh Tharby, Dave Whynot and Peter Di Tecco

Respondents

-and-

Teamsters Local Union 938

Intervener

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: February 3, 2011

Citation: 2011 HRTO 242

Indexed as: Hawco v. Peel Express

WRITTEN SUBMISSIONS

Mario Hawco, Applicant ) Self-represented

Peel Express, Division of Armbro )

Transport Inc., Hugh Tharby, Dave ) William S. Cook, Counsel

Whynot and Peter Di Tecco, Respondents )

INTRODUCTION

1The purpose of this Interim Decision is to address the applicant’s Request for an adjournment of the hearing, and to provide directions to the parties with respect to managing the hearing.

BACKGROUND

2On September 29, 2010, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing is scheduled for February 9, 10 and 11, 2011. The Notice also informed them that requests for adjournments will be dealt with in accordance with the Tribunal’s Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Information Bulletin in effect at that time provided that requests to reschedule a hearing must be made within five days of receiving the Notice, and thereafter, requests for adjournments would only be granted in extraordinary circumstances, such as the illness of a party, witness or representative.

3The Notice also set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list, and a brief statement summarizing the expected evidence of each witness, no later than 45 days prior to the first scheduled day of hearing.

4The respondents have complied with Rules 16 and 17, but the applicant has not. The Tribunal has not received any documents, or a witness list and witness statements, from the applicant.

5On January 18, 2011, the applicant sent the Tribunal a letter which requested an adjournment of the hearing because his retainer with his previous legal representative ended in December 2010 and he has not yet retained new legal representation. He also requested three summonses to witness forms, which the Tribunal then sent him on January 21, 2011.

6On January 31, 2011, the respondents sent the Tribunal a letter which consented to the applicant’s request for an adjournment of the hearing. The letter also stated that the applicant had not delivered will-say statements to the respondents.

7On February 1, 2011, the applicant sent a further letter to the Tribunal, which stated that he did not realize that his previous legal representative had not filed witness statements. He stated that his need to properly prepare and submit the required documents constitutes an additional reason why the hearing should be adjourned.

ADJOURNMENT REQUEST

8The applicant’s Request to adjourn the hearing is denied. An adjournment request on consent does not automatically result in an adjournment. The rationale for the Tribunal’s approach to such requests was set out in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4:

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 those 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 Tribunal has also held that a party’s decision to change their representative after the hearing has been scheduled, or requiring more time to prepare for a hearing, are not “extraordinary circumstances”, which justify an adjournment: see Vallentyne, supra, and Knibbs v. Brant Artillery Gunners Club, 2009 HRTO 1601.

10Accordingly, the fact that the applicant’s retainer with his previous legal representative ended in December 2010, and he has not yet retained new legal representation, and the fact that he needs time to prepare a witness list and witness statements because his previous legal representative did not file and deliver them, are not “extraordinary circumstances” which justify delaying the hearing.

DIRECTIONS

11The applicant has not fully complied with Rules 16 and 17 of the Tribunal’s Rules on disclosure of documents and witnesses, but I do not see any reason why he cannot do so relatively quickly.

12The Tribunal therefore directs the applicant to comply with Rules 16 and 17 immediately, and warns him that a failure to comply cannot be used as a reason to make a further adjournment request. The Tribunal will address the impact on the respondents, if any, of the applicant’s failure to comply with the Rules at the outset of the hearing.

13To clarify what remains outstanding, it appears that the applicant’s previous legal representative delivered a copy of the documents that the applicant intends to rely on at the hearing to the respondents, but did not file a copy with the Tribunal, and did not file with the Tribunal and deliver to the respondents a witness list and witness statements.

14At the outset of the hearing, the Tribunal will also address the preliminary issues raised by the respondents, and the extent and nature of Teamsters Local Union 938’s participation, if any, in the hearing.