Stopyn v. United Association of Plumbing & Pipefitting Union Local 67, 2012 HRTO 1696

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Stopyn

Applicant

-and-

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 67, Mark Ellerker and Leslie Ellerker

Respondents

Interim DECISION

Adjudicator: Kathleen Martin

Date: September 7, 2012

Citation: 2012 HRTO 1696

Indexed as: Stopyn v. United Association of Plumbing & Pipefitting Union Local 67

iNTRODUCTION

1This is an Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses the applicant’s request to adjourn the preliminary hearing on September 21, 2012 for the reason that he will be preoccupied with his daughter who is commencing her studies at university this month.

BACKGROUND

2The Application was filed with the Tribunal on August 16, 2011. Among other things, the applicant alleges that the respondent union failed to accommodate his creed when elections were scheduled on a day that he was unable to attend due to his religious beliefs.

3On March 20, 2012, the respondent filed its Response denying the allegations and indicating its intention to file a Request for Order During Proceedings requesting dismissal of the Application on the basis that it is untimely, an abuse of process and collateral attack on the dismissal of a prior application, and/or the failure to plead a prima facie case (“the Request”). The Request was subsequently filed on April 10, 2012.

4On April 16, 2012 the Tribunal wrote to the parties referencing the respondent’s Request and indicating that a half day hearing by teleconference would be scheduled to hear submissions on whether the Application should be dismissed “pursuant to s. 45.1, and s. 34.8 of the Code and if the Application is an abuse of process.” (which contained a typographical error as the respondent’s claim that the Application is untimely is based on s. 34 (1) and (2) as specifically set out in their Request along with the applicable caselaw).

5The applicant has filed a Reply to the Response but does not appear to have filed a Form 11 response to the Request.

6By letter dated April 17, 2012, the Tribunal issued a Notice of Confirmation of Hearing setting the hearing date for July 4, 2012.

7The respondent made a timely request to reschedule the hearing. On consent of the parties, the Tribunal issued a letter to the parties on May 23, 2012, rescheduling the hearing to September 21, 2012. In addition, pursuant to the HRTO’s Policy on Accessibility and Accommodation, the applicant’s request for an in person hearing was granted.

8The applicant’s request for an adjournment was made by email on August 27, 2012 (“the Adjournment Request”). As noted above, the Adjournment Request is based on the applicant being preoccupied for the month of September with his daughter who is just commencing her studies at university. The applicant explains that as a result, he will be unable to fully review all of the correspondence for the hearing.

9The respondent consents to the Adjournment Request although it notes that it fails to understand how the daughter’s enrollment at university will occupy the applicant for an entire month.

DECISION

10The Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Request, and Requests for Adjournments states, in part:

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.

11In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, the Tribunal states at paras 4 and 5:

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.

12Having regard to the above and considering the reasons given, I am not prepared to adjourn the hearing. The Notice of Confirmation of Hearing was issued over three months before the Adjournment Request on a date that was selected on consent of the parties. The applicant has not explained why he is bringing the request at this late stage. While he cites being preoccupied with his daughter who is commencing her university studies, I agree with the comments made by the respondent insofar as I also fail to understand how these circumstances will be occupying the applicant for an entire month. In short, even though there is consent, I do not find that the applicant has pointed to any exceptional circumstances that would justify granting an adjournment.

13The Adjournment Request is denied.

14I remind the parties that they were required to file any additional material (documents and/or caselaw) that they intend to rely on by September 7, 2012. If any party has not done so, it should file any additional documents and/or caselaw immediately.

15In addition, the respondent is directed to advise the Tribunal in writing if it intends to appear in person by September 11, 2012.