Covacha v. Dr. R. Diwan Dentistry Professional Corporation, 2012 HRTO 1419

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jo-Ann Covacha Applicant

-and-

Dr. R. Diwan Dentistry Professional Corporation o/a Fenworth Dental Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: July 19, 2012 Citation: 2012 HRTO 1419 Indexed as: Covacha v. Dr. R. Diwan Dentistry Professional Corporation

1In this Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondent decided not to employ her after purchasing the dental practice where she previously worked because of the applicant’s maternity leave, and thereby discriminated against her on the basis of sex with respect to employment.

2The hearing in respect of the Application is scheduled for August 1, 2012.

3This Interim Decision addresses the applicant’s July 17, 2012 request for an adjournment of the August 1, 2012 hearing date, and the respondent’s request that the Application be dismissed as abandoned, due to the applicant’s failure to comply with the Tribunal’s direction that she provide the respondent and the Tribunal with detailed witness statements for her proposed witnesses.

ADJOURNMENT

4On July 17, 2012, the Tribunal received a letter from counsel for the applicant requesting that the August 1, 2012 hearing date in this matter be adjourned. The stated basis for the adjournment request is that counsel for the applicant requires additional time to prepare for the hearing and in particular to gather the documents on which the applicant seeks to rely, some of which are in the possession of third parties. Counsel for the applicant does not indicate the date on which he was retained with respect to this matter. However, according to a June 24, 2012 email from the applicant, counsel was retained at some point on or before that date.

5I should note that, in his July 17, 2012 letter, counsel for the applicant suggests that the applicant had earlier requested an adjournment of the hearing based on her “family circumstances”. (The applicant was out of the country visiting her seriously ill father from mid-April to June 9, 2012). However, this is not the case. By email dated June 24, 2012, the applicant requested an extension of the time for the filing of her pre-hearing disclosure materials. She did not, however, request an adjournment of the hearing. On the contrary, in her June 24, 2012 email, the applicant indicated that she had retained legal counsel who would be in touch with the Tribunal shortly and who would be representing the applicant on the set hearing date. Moreover, by email dated July 10, 2012, the applicant indicated that she was working with her lawyer to comply with the Tribunal’s July 9, 2012 direction that she produce her documents and witnesses by July 16, 2012. It was thus not until July 17, 2012, that the applicant made any request that the August 1, 2012 hearing be adjourned.

6The January 26, 2012 Notice of Confirmation of Hearing in this matter advised the parties that requests for adjournments would be dealt with in accordance with the Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments” which states in relevant part:

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.

7In this case, the applicant’s alleged need for additional time so that she and/or her legal counsel can gather the applicant’s documents in advance of the hearing is not an extraordinary circumstance justifying the adjournment of the hearing. As noted above, the Notice of Confirmation of Hearing in this matter, advising the parties that the hearing of the Application would take place on August 1, 2012, was mailed to the applicant on January 26, 2012, more than six months before the hearing. In my view, this afforded the applicant an ample opportunity to gather her documents and to prepare for the hearing.

8Even taking into account the fact that the applicant was out of the country from mid-April to June 9, 2012, visiting her seriously ill father (a factor which was not explicitly raised as a basis for the adjournment request), I am not satisfied that the circumstances justify the granting of an adjournment. The applicant returned to Canada on June 9, 2012, more than seven weeks before the commencement of the hearing. Even if the applicant was unable to gather her documents while she was away, it seems to me that she has had a sufficient amount of time since returning to the country to prepare for the hearing. The applicant offers no information that might lead me to conclude otherwise.

9To the extent that the applicant’s alleged need for an adjournment stems from her failure to retain counsel in a more timely manner, the Tribunal has often held that this does not constitute an extraordinary circumstance that warrants adjournment of the hearing, including when counsel is unavailable or unprepared to proceed on the scheduled date: Pazhaidam v. North York General Hospital, 2011 HRTO 1663; Davie v. PMA Brethour Real Estate, 2009 HRTO 1198; Wilson v. York (Regional Municipality), 2009 HRTO 2020; Schenk v. OSAD, 2010 HRTO 446; Vallentyne v. Royal Canadian Legion, 2009 HRTO 660.

10In short, the applicant has failed to establish that she requires an adjournment due to extraordinary circumstances as opposed to her own failure to prepare for the hearing and/or retain counsel in a timely manner. The applicant’s request for an adjournment is denied accordingly. The hearing will proceed as scheduled on August 1, 2012.

RESPONDENT’S REQUEST THAT THE APPLICATION BE DISMISSED AS ABANDONED

11On July 9, 2012, the Tribunal issued a Case Assessment Direction in this matter directing the applicant to comply with her obligations regarding pre-hearing disclosure of documents and witnesses pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure. In doing so, the Tribunal gave the applicant the following direction regarding the content of witness statements required pursuant to Rule 17 of the Tribunal’s Rules of Procedure:

In preparing the witness statements required pursuant to Rule 17 of the Rules of Procedure, the applicant is reminded that she is required to provide a detailed statement setting out the evidence that the applicant herself intends to give at the hearing of this matter, as well as detailed statements of the anticipated evidence of any other witnesses she intends to call. C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426 at para. 7.

12By email dated July 16, 2012, the applicant identified five witnesses she intends to call to testify at the hearing of this matter. The applicant did not, however, provide a witness statement for each witness she intends to call, setting out in detail what each witness is expected to say when he or she testifies. Nor did the applicant provide a witness statement for herself, setting out in detail the evidence that the applicant intends to give at the hearing of this matter.

13By email dated July 17, 2012, the respondent takes the position that the applicant has failed to comply with the Tribunal’s directions regarding the disclosure of detailed witness statements and that, consequently, her Application ought to be dismissed as abandoned.

14I agree with the respondent that the applicant has failed to comply with the Tribunal’s Rules of Procedure regarding the pre-hearing disclosure of documents and witnesses, as well as the directions in the January 26, 2012 Notice of Confirmation of Hearing and the Tribunal’s July 9, 2012 Case Assessment Direction.

15However, I am unable to conclude that the applicant does not intend to pursue her Application such that it ought to be dismissed as abandoned. On the contrary, it is apparent from the applicant’s emails of July 10 and 16, 2012, and her counsel’s letter of July 17, 2012, that the applicant intends to pursue her Application and is not abandoning it. I therefore decline to grant the respondent’s request that the Application be dismissed as abandoned.

16This, however, does not preclude the respondent from objecting to any attempt by the applicant to call a witness in respect of whom she has not produced a detailed witness statement in accordance with the Tribunal’s Rules, or to rely on a document that she has not disclosed in accordance with the Tribunal’s Rules of Procedure. Such objections, if any, will be heard and determined at the hearing.