Atkinson v. Three Degrees Restaurant, 2011 HRTO 36

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gordon Atkinson Applicant

-and-

Three Degrees Restaurant Corporation and the TDL Group Corporation Respondents

INTERIM DECISION

Adjudicator: David A. Wright Date: January 5, 2011 Citation: 2011 HRTO 36 Indexed as: Atkinson v. Three Degrees Restaurant

WRITTEN SUBMISSIONS

Gordon Atkinson, Applicant ) Amanda Driscoll, Counsel Three Degrees Restaurant Corporation and ) James Heeney, Counsel The TDL Group Corporation, Respondents )

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The parties seek, on consent, the adjournment of the hearing scheduled for January 26 and 27, 2010. The adjournment request is denied.

BACKGROUND

2The Application was filed with the Tribunal in July of 2009. Although the other parties agreed to mediation, Three Degrees, in its Response filed on November 26, 2009, did not. Accordingly, no mediation was scheduled.

3On September 28, 2010, the Tribunal sent the parties a Notice of Confirmation of Hearing. That Notice scheduled the hearing for January 26 and 27, 2011. It advised the parties that disclosure of arguably relevant documents had to take place by October 19, 2010, and that disclosure of documents to be relied upon, witness lists, and summaries of each witness’s evidence had to take place by December 13, 2010. It noted, on the first page, that requests for adjournment would be dealt with in accordance with the HRTO’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments available on the HRTO’s website.

4By letter dated October 15, 2010, counsel for the applicant wrote to counsel for the respondent advising that the applicant did not have any arguably relevant documents in his possession.

5On October 14, 2010, counsel for the respondent, on consent, sought an extension to November 19, 2010, to provide arguably relevant documents. The Tribunal granted the extension. On November 19, 2010, counsel for the respondent sent a letter to the Tribunal confirming that the respondent had sent the applicant its arguably relevant documents. The same day, counsel for the applicant wrote to counsel for the respondent requesting that copies be sent of videos that had not been included with the disclosure.

6On December 8, 2010, counsel for the applicant wrote to the Tribunal as follows:

The parties have agreed and consent to an adjournment of the scheduled hearing dates, January 26-27, 2011, to attempt to mediate the above noted complaint.

The parties’ further request that the current scheduled dates be held for possible mediation. In the event that mediation cannot be agreed upon, the parties will offer alternative dates for a hearing.

Therefore the deadline of December 13, 2010, regarding Disclosure and Filing of Documents should be vacated at this time, if the Tribunal finds the above acceptable.

7By letter dated December 15, 2010, the Tribunal advised the parties that only mediation/adjudication was possible:

The parties have requested that mediation take place on the first day of the hearing. The Tribunal agrees to mediation on the understanding that if a settlement is not achieved, the hearing will continue before the same Vice-chair in accordance with the Tribunal’s mediation/adjudication process. A copy of the mediation/adjudication agreement is enclosed for the parties to review.

The parties are directed to inform the HRTO, with a copy to all parties, if they agree to proceed with mediation/adjudication by December 29, 2010.

8On December 22, 2010, counsel for the applicant wrote to the Tribunal asking again for mediation with a different mediator. On December 29, 2010, the Tribunal advised the parties again that it was unable to offer mediation with a different adjudicator and that, accordingly, the hearing would proceed as scheduled.

9On December 31, 2010, counsel for the respondents wrote to the Tribunal as follows:

Thank you for your letter.

Unfortunately, the parties are not in a position to proceed with a hearing.

I am currently on vacation and traveling out of the country until January 10, 2010. The Respondents have two motions which were put on hold while the parties tried to seek a mediation date.

Specifically, the Respondents need to have an order relating to the production of documents and an amendment to the Response. The parties had agreed to forego these issues in an attempt to mediate the matter on the understanding that the movement of the hearing date was possible on consent.

In reliance on this, the parties have not completed productions, exchanged witness statements or completed the motions required. In addition, the Respondent has not summons [sic] its witnesses who include third parties.

Should the matter be required to proceed, the Respondents will prejudiced by the reliance and delay in being informed that the consent proposal was not accepted. As one example, the Applicant has refused to provide his criminal record which if ordered would take over 4 weeks to produce from the RCMP. The Respondent simply has no way to proceed in the timeline proposed.

The Respondents ask reconsideration of this decision as the both parties will be prejudiced and currently the Respondents will be unable to put forward its defence which will then undoubtedly result in a further request for reconsideration and an application for judicial review. If the Tribunal is unable to mediate this matter, the parties will try to mediate the matter and ask for the hearing to be adjourned.

DECISION

10The Tribunal’s Practice Directions and case law are clear that the desire to explore settlement will not lead to the granting of an adjournment. The Practice Direction referenced in the Notice of Hearing 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.

11In 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.

12The Tribunal at no time gave the parties any information that suggested that the approach would be otherwise in this case. If the parties failed to prepare for the hearing, it is because they assumed that the Tribunal would cancel the previously scheduled hearing dates, contrary to its policies. The Tribunal has communicated nothing to the parties that would have led to “reliance.”

13It is also incorrect that there was any delay in the Tribunal’s response to the parties. The parties requested an adjournment on December 8, 2010. The Tribunal advised that it was prepared to offer mediation only if the parties agreed to mediation/adjudication on December 15, 2010. That letter did not adjourn the hearing nor change the dates for the parties to exchange witness statements and documents they intended to rely upon.

14As there are no exceptional circumstances that warrant the adjournment, it is denied in accordance with the Tribunal’s policies. The parties shall immediately file their witness statements and documents that were due on December 13, 2010. Any Requests for Order filed by the respondent will be dealt with at the outset of the hearing and the parties shall be prepared to make argument on them at that time.

15I am not seized of this matter.