Frenza v. Custom Granite & Marble Ltd., 2012 HRTO 1094

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Beth Ann Frenza

Applicant

-and-

Custom Granite & Marble Ltd.

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 31, 2012

Citation: 2012 HRTO 1094

Indexed as: Frenza v. Custom Granite & Marble Ltd.

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) dated July 8, 2010, alleging discrimination with respect to employment because of sex (pregnancy).

2The purpose of this Interim Decision is to address the respondent’s request for an adjournment of the scheduled hearing date in this matter. I also will address certain case management matters.

Request for adjournment

3By Notice of Hearing dated January 4, 2012, the parties were notified by the Tribunal that the hearing in this matter would take place on July 13, 2012. The Notice indicated that if either of the parties was unavailable to attend the hearing on that date, they should notify the Tribunal within 14 calendar days. No objection to the hearing date was taken by either party within this 14 day period.

4On May 22, 2012, the respondent wrote to the Tribunal to request that the hearing in this matter be re-scheduled. This letter states that the reason for the late request is that the respondent had just learned that one of its witnesses (Tomas Lafford) is getting married in July 2012 and would not be available to attend the hearing on the scheduled date. Due to staff vacations over the summer, the respondent requests that the hearing be re-scheduled for a date in September 2012. The applicant objects to this request on the basis that arrangements could be made to hear the unavailable witness at a later time.

5On May 28, 2012, the respondent wrote again to the Tribunal to provide a further reason in support of its adjournment request, namely that Michael Card, one of the principals of the respondent business whose evidence is central to this proceeding, would also not be available on the scheduled hearing date, as he is participating in a golf tournament from July 11 to 15, 2012, which he has participated in for a number of years and which is an important source of business for the respondent company. It was subsequently noted that the respondent company is a sponsor of this tournament. The applicant objects to this additional reason for the adjournment request, on the basis that attending a golf tournament is not a sufficient reason to justify the adjournment of a Tribunal hearing.

6The 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 14-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.

7The hearing in this matter is currently scheduled for one day. The parties have filed their pre-hearing materials. The applicant intends to testify on her own behalf and the respondent intends to call four witnesses. Given the nature of the issues in this proceeding, which include alleged poor work performance by the applicant in relation to a range of specific issues, it is doubtful that the hearing will be completed in one day. As a result, in my view, the needs of the two individuals who may be unavailable to attend the hearing on July 13, 2012 can be addressed simply by having them testify at a later date.

8For the hearing day on July 13, 2012, the Tribunal can proceed to hear the evidence of the applicant as well as the evidence of Ms. Allison and Ms. Peternel, including their evidence in chief and cross-examination. I appreciate that the applicant will be giving evidence about specific conversations with Mr. Card and, if Mr. Card does not attend the hearing on July 13, 2012, the respondent may wish to consult with Mr. Card about the applicant’s evidence before completing its cross-examination of the applicant. However, in my view, the possibility of further cross-examination of the applicant at a later time can be accommodated in the hearing process without necessitating an adjournment of the scheduled hearing date.

9Mr. Card can choose whether or not he wishes to attend the hearing on July 13, 2012. While he is a principal of the respondent company, he has not been named personally as a respondent and so his attendance is not required. I can well appreciate that, given the issues raised and the potential consequences of this legal proceeding, Mr. Card may very well wish to attend the hearing in its entirety. That is his choice. But in my view, the holding of a week-long golf tournament that includes one hearing day is not the kind of exceptional reason that justifies an adjournment.

10The respondent’s request for adjournment is denied and the hearing will proceed as scheduled on July 13, 2012 in St. Catharines. I appreciate that the respondent also has requested a change to the start time for the hearing, which is currently set for 10 a.m. While the Tribunal’s hearings normally start at 9:30 a.m. in Toronto, out of Toronto hearings generally are scheduled to start at 10 a.m. to accommodate the travel of the adjudicator. As a result, the time for commencement of the hearing will remain at 10 a.m. The parties should be prepared to attend at the hearing until 5 p.m., if necessary.

11Scheduling of a further hearing day if required to complete the hearing in this matter will be discussed at the conclusion of the hearing day on July 13, 2012.

Case management

12I am aware that a Request for Order has been filed by the applicant which, in part, requests that the Application be amended to state the respondent company’s proper name. That request is not necessary, as the Tribunal routinely reflects the proper corporate name as stated in the Response in the title of the proceeding, as it has done in this case. While the Response filed in this matter did not state the full name of the respondent organization in Section 1 of the form, the Response nonetheless attached a narrative on the corporate letterhead which sets out the proper corporate name for the respondent company.

13With regard to the applicant’s request to amend the Application to claim compensation for injury to dignity, feelings and self-respect in the amount of $15,000, if the respondent objects to this amendment, then it needs to file a Response to Request for Order (Form 11) within 14 days of having been served with the applicant’s Request, setting out the reason for its objection and indicating how it would be prejudiced by any such amendment.

14I also am aware that the respondent has filed a statement from an employee named Debbi Iezzi but has not included this individual on its witness list. I want to be clear that the Tribunal generally will not rely on a written statement as admissible evidence in a proceeding. If the respondent wishes to rely upon Ms. Iezzi’s evidence, then she would need to appear in person and testify at the hearing. If the respondent intends to call Ms. Iezzi as a witness to testify at the hearing, it shall so notify the applicant and the Tribunal within 14 calendar days of the date of this Interim Decision.