Morgan v. University of Waterloo, 2011 HRTO 899

Human Rights Tribunal of Ontario

B E T W E E N:

Tracy Morgan

Applicant

-and-

University of Waterloo and David Mackay

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: May 9, 2011

Citation: 2011 HRTO 899

Indexed as: Morgan v. University of Waterloo

Decision

1This is an Application filed on April 12, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination and harassment in employment on the grounds of sex. The matter is scheduled for hearing on May 10 to May 12, 2011. This Interim Decision deals with the respondents' request for an adjournment.

2On the morning of May 9, 2011, the Tribunal received a voice mail and then a letter sent by e-mail from the office of the respondents' counsel stating that the respondents' counsel was ill and accordingly was requesting that the hearing be cancelled and re-scheduled.

3Later on the morning of May 9, 2011, the Tribunal received an e-mail from the applicant opposing the respondents' request for a postponement. The applicant submits that the law firm retained by the respondents has a large roster of lawyers and could assign another counsel to present the respondents' case. The applicant submits that due to the lateness of the adjournment request and the resources of the institutional respondent, an alternative counsel should be assigned to represent the respondents.

4The applicant submits that given the number of persons involved in the case it is likely that someone will be ill on any given day. The applicant further submits that two of the applicant's witnesses may not be available in future as one is going on parental leave and the other's availability is unknown. Finally, the applicant submits that the applicant has prepared for a hearing on May 10-12, including making her witnesses available and to postpone at this time was essentially unfair.

DECISION

5The Confirmation of Hearing states that requests for adjournments will be dealt with according to the Tribunal's "Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments". The Information Bulletin provides that requests to reschedule must be made within five days of receiving the Confirmation of Hearing, and goes on to state, in part, that:

Requests for adjournment, particularly last minute requests for adjournments are a significant impediment to fair and timely access to justice.

The Tribunal's approach to scheduling and rescheduling mediations and hearings is designed to give the parties a fair opportunity to find suitable dates. Therefore, the Tribunal discourages adjournment requests, and will only grant adjournments in extraordinary circumstances such as the illness of a party, witness or representative.

6The respondents' request for an adjournment is granted. I am satisfied that the illness of the respondents' counsel constitutes an extraordinary circumstance. I do not find that the applicant's argument that the respondents should substitute an alternative representative reasonable given the complex nature of this case. The respondents should be able to rely on the counsel that has prepared their case and is familiar with the myriad of issues that will potentially need to be addressed in examination and cross-examination. There are further preliminary issues.

7The applicant's submission that two of her witnesses may not be available in future is somewhat speculative and does not outweigh the unfairness to the respondents if they were obliged to proceed without their designated counsel.

8The Tribunal is committed to proceeding in a manner that is fair, just and expeditious. Clearly, postponing the hearing at this late juncture delays matters and inconveniences the parties. However, given the circumstances I am satisfied that the fair and just decision is to grant the request for a postponement.

9By no later than May 19, 2011, the parties shall communicate with each other and advise the Tribunal as to their availability for a future hearing of this matter. If no communication is received from the parties by that date, the Tribunal may set hearing dates without further consultation with the parties.