Smith v. Quickservice Technologies Inc., 2012 HRTO 134

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Smith

Applicant

-and-

Quickservice Technologies Inc.

Respondent

INTERIM decision

Adjudicator: Alison Renton

Date: January 18, 2012

Citation: 2012 HRTO 134

Indexed as: Smith v. Quickservice Technologies Inc.

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code). The applicant seeks an adjournment of the start of the hearing scheduled for January 24 and 25, 2012. The adjournment request is denied.

BACKGROUND

2The Application was filed with the Tribunal on May 6, 2009. It was originally scheduled for hearing in May 2011 pursuant to a Notice of Confirmation of Hearing issued by the Tribunal and dated December 22, 2010 (“the December 2010 Notice”). The May 2011 hearing dates were adjourned as counsel for the applicant wrote to the Tribunal on January 6, 2011, advising that she was unavailable on the May 2011 dates due to a previously scheduled trial.

3As the applicant’s counsel’s adjournment request was made within the time permitted for rescheduling contained in the Practice Direction, the hearing was rescheduled and a Rescheduled Notice of Confirmation of Hearing, dated September 13, 2011, was issued scheduling the hearing for January 24 and 25, 2012, commencing at 10:00 a.m. in St. Catharines (“the September 2011 Notice”). Both Notices noted, on the first page, that requests for adjournment would be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments available on the HRTO’s website.

4The respondent has complied with the Tribunal’s Rules of Procedure disclosure obligations, Rule 16 and Rule 17, and has identified that two witnesses will be called to testify on its behalf.

5The applicant has complied with her Rule 16 disclosure obligation and identified that three witnesses, in addition to the applicant herself, would be called to testify on her behalf. A Case Assessment Direction (“CAD”) was issued by the Tribunal dated January 17, 2012, stating that the applicant’s witness statements did not comply with Rule 17 and directed the applicant to immediately deliver to the respondent and file with the Tribunal witness statements that complied with Rule 17.

6By letter dated January 16, 2012, and received by the Vice-chair after the January 17, 2012 CAD was issued, the applicant’s counsel wrote to the Tribunal requesting a later start time apparently for both the January 24 and 25, 2012 hearing dates. The counsel wrote:

I have a status hearing in Hamilton scheduled for the same time, therefore could this hearing be deferred to a later time the same day possibly commencing at 1:00 pm.

7At the time of issuing this Interim Decision, the respondent has not responded to the applicant’s counsel’s request.

DECISION

8The Practice Direction on requests to adjourn or reschedule reads as follows:

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.

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.

9In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

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

10Since both hearing dates are referenced on the re line of the applicant’s counsel’s January 16, 2012 request to adjourn the start of the hearing time, the Tribunal assumes that the applicant’s counsel is requesting that both hearing dates start at 1:00 p.m. rather than the 10:00 a.m. start time specified on the September Notice.

11This Application was filed in May 2009. The parties have known about the January 2012 hearing dates since September 2011 and between the two of them have identified six potential witnesses who will be testifying during the two scheduled hearing days. With six potential witnesses being identified by the parties, it may be difficult to conclude the hearing within the two days that are currently scheduled, but a three-hour delayed start time on one or both hearing days will certainly result in additional hearing days being required.

12The hearing was previously rescheduled in 2011 due to the applicant’s counsel’s unavailability, although the Tribunal notes that adjournment request was made within the parameters of its Practice Direction. Further, the applicant’s counsel is requesting an adjournment of this hearing due to another proceeding. She has not provided any information as to why, a week before the hearing, she is suddenly requesting an adjournment of this hearing to a later start time and when she first learned of the status hearing she now states that she has scheduled in a different venue in a different city.

13As there are no exceptional circumstances that warrant the adjournment of the start time on either or both of the scheduled hearing dates, the applicant’s counsel’s request is denied. The hearing will proceed on the dates and times scheduled and as set out in the Tribunal’s September 2011 Notice.