HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Asha Mullings
Applicant
-and-
3574423 Canada Inc. and George Bozikis
Respondents
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Mullings v. 3574423 Canada
WRITTEN SUBMISSIONS
Asha Mullings, Applicant ) Jo-Ann Seamon,
) Counsel
3574423 Canada Inc. and George Bozokis, ) Cindy Kieu,
Respondents ) Counsel
INTRODUCTION
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant seeks an adjournment of the hearing scheduled for March 7, 2011 on the basis that counsel for the applicant has recently been retained and neither party has complied with the rules on disclosure of documents and witness lists. The respondent consents. The adjournment Request is denied.
2The Tribunal’s Practice Directions and caselaw are clear that adjournments will be granted only in exceptional circumstances, and retention of new counsel is not such a circumstance. The Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments 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.
The HRTO typically will not adjourn a hearing date because the parties wish to “engage in settlement discussions” or are “close to a deal.” The HRTO encourages mediation and settlements, and will assist the parties in this regard. Where parties believe they may be able to resolve a matter shortly before the scheduled hearing, they should advise the Registrar and the HRTO may make a mediator and mediation room available. The parties may also request mediation/adjudication in accordance with Rule 15.2.1 (and Rule 8.5 for s. 53(3) and 53(5) applications). However, the HRTO discourages the cancellation or adjournment of hearing dates so that the parties can explore settlement.
3In Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 (“Vallentyne”) at para. 6 the Tribunal held:
The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for an adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled.
4In Vallentyne 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. (…) 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 [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
5Where the parties have failed to comply with their obligations to exchange disclosure and witness statements, which are clearly set out in the Tribunal’s Rules and Notice of Hearing, the result will be an order that they comply with the Rules and prepare for the hearing with the time remaining, not an adjournment to give them more time to do so, which will affect the Tribunal’s ability to schedule other cases that are currently waiting for a hearing.
6The adjournment is denied, and the parties are directed to immediately comply with their obligations under Rules 16 and 17. The applicant’s Request to amend the Application will be dealt with at the outset of the hearing, and the parties shall be prepared to proceed in accordance with the amended Application in the event that the Request is granted.
7I am not seized.
Dated at Toronto, this 11th day of February, 2011.
”signed by”________________
David A. Wright
Interim Chair