HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Farrukh Effendi
Applicant
-and-
Securitas Canada Ltd.
Respondent
INTERIM DECISION
Adjudicator: Kevin Cleghorn
Indexed as: Effendi v. Securitas Canada Ltd.
WRITTEN SUBMISSIONS
)
Farrukh Effendi, Applicant ) Jo-Ann Seamon, Counsel
)
)
Securitas Canada Ltd., Respondent ) Daniel McDonald, Counsel
)
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age and creed, as well as reprisal for pursuit of a grievance.
ISSUES FOR DETERMINATION
2The purpose of this Interim Decision is to address the following matters:
(a) The applicant’s request for an adjournment of the hearing scheduled for September 13 and 14, 2012; and
(b) The respondent’s request for the hearing dates, or at least one of them, to be utilized for case management issues and/or mediation/adjudication of the matter.
3The hearing in this matter is scheduled to proceed on Thursday, September 13, 2012 with continuation on Friday, September 14, 2012. The applicant’s request for an adjournment is opposed by the respondent. Oral submissions on both of the above-mentioned requests were heard on September 10, 2012.
4By fax dated September 6, 2012, the applicant sought an adjournment of the hearing on the basis that counsel with carriage of the matter is ill. That counsel is not available until at least the end of September, but health considerations may delay her involvement further if not end her involvement altogether. She has been the only counsel involved in the matter on behalf of the applicant. The submission made on behalf of the applicant is that the case involves significant documentation and that it is effectively impossible for new counsel to conduct the hearing under the circumstances. It is also submitted by the applicant that case management issues cannot be dealt with appropriately by new counsel unfamiliar with the file. The same submission is made with regard to conduct of a mediation/adjudication.
5In response, on September 7, 2012, the respondent opposed the adjournment request on the basis that this matter has been long delayed and the applicant has available to him other counsel in the same office. According to the respondent, the issues in this matter are not complex despite the voluminous documentary production. The respondent submits that the respondent is prejudiced by further delay, citing, as one example, that one of its eight witnesses is no longer employed by the respondent. The respondent raises the issue of an intention to seek formal removal of counsel for the applicant in any event- it is unclear if that intention relates to the specific counsel involved or to her office as a whole.
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 ten-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, copied to the other parties.
7This matter was scheduled for hearing by letter from the Tribunal dated February 7, 2012. In that letter, the applicant was advised that he was required to make disclosure of all arguably relevant documents to the respondent by no later than February 28, 2012 and was to provide notice of his witnesses and a brief statement of their evidence by July 30, 2012. There has been compliance with those requirements, but a number of case management issues remain outstanding which could further complicate and/or delay the hearing in any event.
8In my view, the applicant is entitled to an adjournment. The presence of counsel, fully briefed and instructed on the matter, is fundamental to the fairness of the hearing. The unavailability of counsel due to illness is a specific exception to the general rule that hearings, once scheduled, are not to be adjourned. I am not satisfied that there is any prejudice to the respondent as a consequence of the adjournment.
9I am also not satisfied that the remainder of the case management issues could be properly dealt with by new counsel at this stage. Nor could a mediation/adjudication be expected to yield a positive result in the absence of counsel familiar with the file. The threshold issue that must be dealt with first is the question of who will be counsel for the applicant, particularly if the respondent intends to formally request the removal of that counsel.
ORDER
10For all the foregoing reasons, I hereby make the following order:
a) The hearing dates scheduled for September 13 and 14, 2012 are vacated and the hearing shall be re-scheduled once the remaining case management issues have been dealt with;
b) Within 7 calendar days from the date of this Interim Decision, the respondent shall, if so inclined, bring the requisite request to remove counsel for the applicant;
c) Once the status of counsel for the applicant has been determined, a Case Conference shall be scheduled to deal with all remaining case management issues, including, but not limited to, production;
d) Following the Case Conference, the hearing shall be scheduled in the ordinary course.
Dated at Toronto, this 10th day of September, 2012.
“Signed by”
Kevin Cleghorn
Member