Human Rights Tribunal of Ontario
B E T W E E N:
Dale Mead Applicant
-and-
Loop Enterprises Inc. and Carmine De Santo Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Mead v. Loop Enterprises
WRITTEN SUBMISSIONS
Dale Mead, Applicant ) Matthew Fisher, Counsel
Loop Enterprises Inc. and Carmine ) Mark Geiger, Counsel De Santo, Respondents )
1This is an Application filed December 8, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination because of disability and sex, including sexual harassment, in employment.
2The purpose of this Interim Decision is to address the corporate respondent’s, Loop Enterprise Inc., Request to adjourn the hearing of this matter and to provide direction to both the applicant and respondents regarding their disclosure requirements.
Respondent’s Adjournment Request
3The Tribunal scheduled this matter for hearing on May 9, 10 and 11, 2011. In a CAD dated March 28, 2011, the Tribunal directed the corporate respondent to confirm whether it intended to participate in the hearing because the Tribunal understands that it is no longer operating as a business.
4By letter dated April 19, 2011, counsel for the corporate respondent responded to the CAD. Counsel reiterated the difficulties encountered in this matter given the status of the corporate respondent. He also noted that the corporate respondent had an insurance policy that might cover some aspects of damages that the Tribunal could award in this case. Counsel went on to say that the insurer could have an interest in the proceedings before the Tribunal and had indicated a willingness to resolve the matter bearing in mind the coverage limitations of the policy. The corporate respondent, however, has not been in a position to cooperate with the insurer in the defence of this matter, which may nullify any obligation the insurer may have.
5Counsel therefore requested adjournment of the hearing to obtain instructions from the insurer and, if the insurer decided to defend the matter, to obtain documents to which counsel has thus far not had access.
6By letter dated April 20, 2011, the applicant opposed the adjournment Request on the basis that counsel has had ample time to receive instructions and gather documents and has also clearly been in communication with the corporate respondent’s principal and the insurer. Moreover, the applicant now lives overseas and has arranged to travel to Toronto to attend the hearing on the scheduled dates. Adjourning the hearing would result in significant losses to the applicant and necessitate further expensive travel.
7The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments gives parties the following direction regarding requests to reschedule hearings:
If rescheduling is required, the parties are encouraged to agree on mutually available dates that are within 12 weeks of the original hearing date(s). If the parties are able to agree on alternative dates, one party must advise the HRTO Registrar in writing within 14 days of the Notice of Confirmation of Hearing. The HRTO will make every effort to schedule the hearing for dates provided by the parties.
If the parties are unable to agree on alternative dates, the party asking that the hearing be rescheduled must contact the HRTO Registrar in writing, copied to the other parties, and provide five alternative dates (or blocks of dates if the hearing is scheduled for multiple days) that are within 12 weeks of the originally scheduled hearing date(s). This must be done within 14 days of the date of the Notice of Confirmation of Hearing. The HRTO will contact the other parties to try to find mutually agreeable dates. If, after a reasonable number of attempts, the parties are unable to agree on dates, the HRTO will set the dates for the hearing without agreement of the parties.
Requests for Adjournments
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.
8The Request to adjourn obviously comes outside of the 14-day period described in the Practice Direction and the applicant opposes the Request. It would seem equally obvious that the insurance policy to which counsel refers predates this Application, but the issue of the policy and the insurer’s potential involvement in the litigation is only raised now at rather late stage of the proceedings. There is no suggestion that the existence of the insurance policy is a new revelation. The insurer is clearly engaged and apparently has an appetite to resolve the matter. In these circumstances, adjournment does not appear necessary for counsel to receive instructions. Similarly, it is not clear how participation of the insurer will allow counsel to obtain documents that he has thus far been unable to access. Further, adjournment will impose significant costs on the applicant. Consequently, I find that exceptional circumstances do not exist and the Request for adjournment is denied.
9The parties are reminded that Rule 19A of the Tribunal’s Rules permits parties to request Mediation/Adjudication from the Tribunal. If the parties consent in writing to this process as required by the Rule, and the adjudicator considers it appropriate, the parties may explore settlement with the assistance of the Tribunal at the outset of the first scheduled hearing day.
Respondent’s Disclosure Requirements
10To date, the corporate respondent has not complied with the pre-hearing disclosure requirements set out in The Tribunal’s Rules of Procedure. Counsel has noted his difficulty in gathering documents given the corporate respondent’s status. However, it is clear that he has been able to obtain some documents that are arguably relevant and upon which the corporate respondent presumably intends to rely. The corporate respondent is directed to deliver to the applicant and file with the Tribunal the documents it intends to rely upon at hearing (rule 16.2 and 16.3), as well as a list of the witnesses the respondent intends to present and a witness statement for each witness (rule 17.1 and 17.2) immediately.
Applicant’s Witness Statements
11The applicant has delivered and filed the documents it intends to rely upon at hearing, pursuant to rule 16.2 and 16.3. The applicant has also delivered and filed a witness list and very general witness statements regarding the applicant and another witness, Mr. Bevliacqua. There is no witness statement regarding Mr. Keast, who is also on the applicant’s list. Rule 17.2 states as follows:
17.2 The witness list must include a brief statement summarizing each witness’ expected evidence
12In C.D. v. Wal-Mart Canada [2010 HRTO 426](https://www.