Anderson v. Malachowski, 2011 HRTO 902

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Anderson Applicant

-and-

Edward Malachowski and Arshad Khawaja Respondents

AND B E T W E E N:

Wendy Henderson Applicant

-and-

Edward Malachowski and Arshad Khawaja Respondents

AND B E T W E E N:

Erica Simons Applicant

-and-

Edward Malachowski and Arshad Khawaja Respondents

AND B E T W E E N:

Pamela Baird Applicant

-and-

Edward Malachowski and Arshad Khawaja Respondents

AND B E T W E E N:

Sylvia Edgecombe Applicant

-and-

Edward Malachowski and Arshad Khawaja Respondents

AND B E T W E E N:

Yvonne Davis Applicant

-and-

Edward Malachowski and Arshad Khawaja Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: May 9, 2011 Citation: 2011 HRTO 902 Indexed as: Anderson v. Malachowski

1A hearing in these matters is scheduled for June 27 and 28, 2011. This Interim Decision addresses the applicants’ request for an adjournment.

2These are six applications filed pursuant to s. 53(3) on the Ontario Human Rights Code (the “Code”), in November 2008. The complaints that underlie the transitional applications in this matter were filed with the Ontario Human Rights Commission on March 31, 2007. The events at issue in this matter date back more than four years, to October and December 2006.

3The hearing in this matter already has been adjourned three times. After mediation in November 2009 was not successful in resolving these matters, the hearing was scheduled for April 27, 2010. On March 23, 2010, counsel for the respondents advised that he had a scheduling conflict on that date due to an ongoing inquest, and requested that the hearing be re-scheduled. The applicants consented to this request.

4As a result, the Tribunal asked the parties to consult with each other and propose some mutually agreeable dates for the hearing, which the parties did. Accordingly, on April 21, 2010, the Tribunal confirmed that the hearing would proceed on October 18 to 20, 2010.

5On October 4, 2010, respondents’ counsel once again asked for an adjournment of the scheduled hearing dates due to a scheduling conflict with other legal matters. Once again, the applicants consented. As a result, on October 7, 2010, the Tribunal re-scheduled the hearing on consent again to February 24, 25 and 28, 2011.

6On January 18, 2011, the applicants’ representative wrote to the Tribunal to advise that the lead applicant, Mr. Anderson, would not be available for the scheduled hearing dates, and requested that these dates be re-scheduled yet again. Counsel for the respondents consented to this request.

7On January 24, 2011, the Tribunal sent a letter noting that this was the second time that the hearing in this matter was being re-scheduled (in fact, it was the third time). The Tribunal noted that it nonetheless would proceed to set further dates, but “will not allow any further adjournments except in the most extraordinary circumstances”. The Tribunal in this letter proposed new hearing dates, which were not acceptable to all parties.

8As a result, on February 3, 2011, the Tribunal sent a letter setting out further proposed hearing dates in late June and early July 2011, which included the June 27 and 28, 2011 dates. On February 4, 2011, the applicants’ representative sent a fax to the Tribunal stating that “we are available on all the dates suggested by the Tribunal and willing to accept any available date to the respondents’ counsel”. On February 10, 2011, after receiving confirmation from the respondents as to their availability, the Tribunal confirmed June 27 and 28, 2011 for the hearing in this matter.

9On April 27, 2011, the applicants’ representative sent a letter to the Tribunal requesting an adjournment of the June 27 and 28, 2011 dates, on the basis that the lead applicant, Mr. Anderson, will be engaged out of the country and the applicant, Ms. Edgecombe, has elective surgery on June 27, 2011. The applicants’ representative states that he has communicated with respondents’ counsel, who has no objection to the request, and proposes alternate dates for the hearing in September and October 2011.

10Later that day, the respondents confirmed that they did not oppose the applicants’ adjournment request, but clarified that while he as counsel was available on the proposed September and October dates, he did not yet know if the respondents themselves were available.

11The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

The HRTO discourages requests for adjournments outside the ten-day period to request rescheduling of a hearing . . . . 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, copied to the other parties.

12As the Practice Direction makes clear, the consent of the parties alone is not a sufficient basis to grant an adjournment in the absence of exceptional circumstances. There are broader institutional interests at stake, including this Tribunal’s commitment to fair and timely access to justice. In my view, these broader institutional interests significantly come into play in the circumstances of this case, where the events at issue date back over four years and where three adjournments of scheduled hearing dates already have been granted.

13Further, when the third adjournment request was granted by the Tribunal, the Tribunal expressly notified the parties that no further adjournments would be permitted except in the most extraordinary circumstances. The applicants’ representative confirmed their availability for the June 27 and 28, 2011 hearing dates when they were scheduled.

14This is a legal proceeding which has carried on for over four years. This legal proceeding was initiated by Mr. Anderson, Ms. Edgecombe and the four other applicants. When hearing dates for this proceeding are scheduled, the parties are expected to make themselves available on the scheduled dates and to arrange their other professional and personal commitments around the scheduled dates. Mr. Anderson and Ms. Edgecombe have known since February 10, 2011 that the hearing in this matter would proceed on June 27 and 28, 2011. If Mr. Anderson needs to be out of the country for a personal or professional engagement, it is the Tribunal’s expectation that he would schedule that engagement around the hearing dates set for the legal proceeding that he commenced. If Ms. Edgecombe requires elective surgery, it is the Tribunal’s expectation that she would schedule this surgery around the hearing dates for the proceeding in which she elected to be an applicant.

15These are not the kind of “most extraordinary circumstances” as would justify yet a fourth adjournment of this matter, even on consent. As a result, the applicants’ request for an adjournment is denied, and the hearing will proceed as scheduled on June 27 and 28, 2011.

16Having reviewed the file for the purpose of preparing this Decision, I note that to date the parties have not yet filed their pre-hearing materials as required by the Rules. These materials are due by no later than June 7, 2011, which is 20 days prior to the commencement of the hearing. By this date, in accordance with Rule 9.5 of the Tribunal’s Rules of Procedure for Transitional Applications, the parties must file with the Tribunal a list of their witnesses, a brief statement summarizing each witness’ expected evidence, and a copy of all documents on which they intend to rely at the hearing.