Mehwish Ali v. 1574814 Ontario Limited o/a Trade Secrets, 2012 HRTO 1131

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mehwish Ali

Applicant

-and-

1574814 Ontario Limited o/a Trade Secrets

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: June 8, 2012

Citation: 2012 HRTO 1131

Indexed as: Ali v. 1574814 Ontario Limited

WRITTEN SUBMISSIONS

1574814 Ontario Limited o/a Trade Secrets, Respondent ) Caroline Ursulak, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to deal with the respondent’s request to adjourn the hearing, and to provide a direction to the respondent with respect to its failure to comply with the Tribunal’s Rules on disclosure of documents and witnesses.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, on April 27, 2011, the respondents filed a Response on July 26, 2011, and the applicant filed a Reply on August 16, 2011.

3On November 18, 2011, the parties attended a mediation at the Tribunal, which did not result in a settlement of the case.

4On December 19, 2011, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for June 27 and 28, 2012. The Notice set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on, no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness no later than 45 days prior to the first scheduled day of hearing. In accordance with the Notice and Rules 16 and 17, the parties were required to disclose to each other and file with the Tribunal all the documents that they intend to rely on, a witness list and witness statements by no later than May 14, 2012. The applicant complied with Rules 16 and 17, but the respondent did not.

5The Notice also informed the parties that requests for adjournments will be dealt with in accordance with the Tribunal’s Practice Direction: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Practice Direction provides that requests to reschedule a hearing must be made within 14 days of receiving the Notice, and requests for adjournments thereafter will only be granted in extraordinary circumstances, such as the illness of a party, witness, or representative.

6On May 24, 2012, the respondent’s counsel filed a letter with the Tribunal, which stated:

Please be advised that I have a conflict with my schedule and I therefore am not available to attend the hearings on June 27 and June 28, 2012.

The letter did not provide any further information, and there was no explanation why the respondent failed to comply with the Tribunal’s Rules on disclosure of documents and witnesses.

7On the same day, the Tribunal’s Registrar sent an e-mail to the parties, which directed the respondent to provide more particulars in support of the adjournment request by no later than May 28, 2012. The respondent did not comply with the direction. To date, the respondent has not provided any further details to the Tribunal. The applicant has not taken a position on the adjournment request.

ADJOURNMENT REQUEST

8The respondent’s request to adjourn the hearing was made more than 14 days after the Hearing Notice was issued to the parties. The Tribunal’s approach to late adjournment requests was set out in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4:

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 [now 14 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 those broader interests by requiring that a party advise within five days [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

9In my view, a vague assertion about a scheduling conflict, particularly when it is preceded by a failure to comply with the Tribunal’s Rules on disclosure of documents and witnesses, does not constitute an extraordinary circumstance which justifies adjourning the hearing. Accordingly, the respondent’s request to adjourn the hearing is denied.

DISCLOSURE OF DOCUMENTS AND WITNESSES

10In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal stated at para. 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

11The respondent is directed to deliver to the applicant and file with the Tribunal the materials required under Rules 16 and 17, within one week of the date of this Interim Decision. If the respondent fails to follow this direction, the Tribunal may refuse to allow it to rely on and present documents and witnesses at the hearing.

ORDER

12The Tribunal makes the following order and direction:

1. The respondent’s request to adjourn the hearing is denied.

2. The respondent is directed to deliver to the applicant and file with the Tribunal the materials required under Rules 16 and 17 within one week of the date of this Interim Decision.