Schenk v. OSAD Inc., 2011 HRTO 480

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristine Schenk

Applicant

-and-

OSAD Inc. and Gregory Nixon

Respondents

INTERIM decision

Adjudicator: Michael M. Lerner

Date: March 8, 2011

Citation: 2011 HRTO 480

Indexed as: Schenk v. OSAD

wRITTEN SUBMISSIONS

Kristine Schenk, Applicant ) Cézanne Charlebois, Counsel

Osad Inc. and Gregory Nixon, Respondents ) Self-represented

INTRODUCTION

1This is an Application under s.45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondents seek the adjournment of the hearing scheduled for March 16, 2011. The adjournment Request is granted.

BACKGROUND

2The Application was filed with the Tribunal on August 10, 2010.

3On November 22, 2010, the Tribunal sent the parties a Notice of Confirmation of Hearing. That Notice scheduled the hearing for February 1, 2011. 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 ("Practice Direction") available on the Tribunal's website.

4On January 28, 2011, the Tribunal sent the parties a Notice of Confirmation of Hearing. It noted again that further requests to adjourn would be dealt with in accordance with the Tribunal's Practice Direction. The re-scheduled hearing was set down for March 16, 2011. I have no information to assist me as to the reason why the hearing scheduled for February 1, 2011 was adjourned.

5By email dated February 16, 2011, the personal respondent wrote to the Registrar, copied to the applicant's representative, to request an adjournment of the scheduled date.

6The personal respondent's February 16, 2011 email states:

Please be advised that the address on the letter from HRT dated Jan 28^th 2011, was made out to 10 Dundas St. I have just received the letter today that being Feb. 16^th 2011. It was found opened and ripped. How this happened is beyond me since you clearly have had my address on file for nearly two years.

I am not able to make it on the 16^th of March as was proposed in the letter. I will be out of the country until the 22^nd of March. I will be available March 23,24,25,28 and 29^th (…).

7The applicant opposes the Request for a further adjournment. The applicant requests that the matter proceed as scheduled on March 16, 2011, in the respondent's absence, and that such order as may be appropriate be made following the hearing of the matter.

8It appears the Notice of Hearing dated January 28, 2011, was sent to an incorrect address and not received until February 16, 2011. The personal respondent advised the Tribunal the same day he states he received the Notice that he was not available to attend the scheduled hearing on March 16, 2011, and provided alternative dates as required by the Practice Direction.

DECISION

9The 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.

10In 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.

11I am satisfied the Notice of Hearing was not sent to the personal respondent's complete address (delivered to 10 Dundas Avenue rather than 310 Dundas Street) and that he advised the Tribunal that he was unavailable on the date scheduled for hearing as soon as he received the Notice.

12Given this and the personal respondent's prior arrangements to be out of the country, I consider the circumstances to be exceptional justifying an adjournment. The hearing scheduled for March 16, 2011, is adjourned to a date to be set by the Registrar.