Brown v. Paula Meier Associates Inc., 2012 HRTO 1766

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Brown

Applicant

-and-

Paula Meier Associates Inc.

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: September 18, 2012

Citation: 2012 HRTO 1766

Indexed as: Brown v. Paula Meier Associates Inc.

WRITTEN SUBMISSIONS

Paula Brown, Applicant

Chantal Tie, Counsel

Paula Meier Associates Inc., Respondent

Trueman Tuck, Representative

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2This Interim Decision addresses the applicant’s request for an adjournment of the scheduled hearing dates and the respondent’s request for a telephone hearing.

3On March 22, 2012, the Tribunal sent the parties a Notice of Confirmation of Hearing. That Notice scheduled the hearing for November 1 and 2, 2012. It 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.

4In an email dated August 17, 2012, the applicant’s counsel wrote to the Tribunal indicating that counsel was retained by the Applicant on April 20, 2012, and though the applicant indicated that she had received a Notice of Hearing, counsel had not yet seen the Notice of Hearing and requested that a copy be provided by the Tribunal. The Tribunal provided a copy to the applicant’s counsel of the March 22, 2012 Notice of Hearing, on August 17, 2012.

5By email dated August 20, 2012, the applicant wrote to request an adjournment of the scheduled date. The email indicated that the applicant’s counsel was not available to attend the hearing on the scheduled dates.

6On August 23, 2012, the respondent’s representative wrote, objecting to the applicant’s request for an adjournment of the scheduled hearing dates.

7Additionally, by letter dated April 10, 2012, the respondent requested that the hearing scheduled for November 1 and 2, 2012 take place via conference call rather than at the premises in Kingston which have been booked for the hearing of this matter. The reason provided is “to avoid any unnecessary travelling and legal expenses”.

DECISION

Request for Adjournment

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.

10Absent exceptional circumstances, unavailability of counsel has not been viewed as a legitimate reason to grant an adjournment. See for example, Vallentyne v. Royal Canadian Legion 2009 HRTO 534 at paragraph 6 and Vallentyne v. Royal Canadian Legion 2009 HRTO 660 at paragraph 5.

11In this case, I am not satisfied that the applicant has provided a reason that would justify granting an adjournment. While the Notice of Hearing was issued before the applicant retained counsel, it does not appear that the applicant provided her counsel with a copy of the Notice, with the result that the request for an adjournment is being made some five months after the Notice was issued, and not long before the parties’ obligations for production of documents and witness lists and will-says pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure.

12As there are no exceptional circumstances that warrant adjournment of this hearing, the applicant’s request to adjourn the scheduled hearing days is denied. The hearing will proceed on the dates scheduled.

Request for Hearing by Teleconference

13As explained in the Tribunal’s “Practice Direction on Hearings in Regional Centres”, the Tribunal schedules hearings in the following regional centres: Toronto; Kingston; London; North Bay; Ottawa; Sarnia; Sault Ste. Marie; St. Catharines; Sudbury; Timmins; Thunder Bay; and Windsor.

14At Rule 3.5, the Tribunal’s Rules of Procedure also provide that the Tribunal may “conduct hearings in person, in writing, by telephone, or by other electronic means as it considers appropriate.” This rule makes clear that the decision as to how a hearing will be conducted is at the discretion of the Tribunal, that it will choose what it considers appropriate.

15I am not satisfied in the present case that allowing the respondent to participate by teleconference is appropriate. As stated in Pinkney v. Datex Billing Services 2009 HRTO 1732, the Tribunal’s ordinary expectation is that participants, especially parties, make themselves available in person to testify and submit to cross-examination and also be present in person to question other witnesses. This is a matter involving several witnesses and the parties’ physical presence is appropriate to ensure that evidence and argument is provided clearly and in a timely fashion and that the hearing takes place in a fair, just and expeditious fashion. There have been circumstances where the Tribunal has permitted witnesses to participate by telephone where the nature of their testimony made such arrangements reasonable. However, the respondent has not submitted any reason for seeking a hearing by teleconference other than the expense associated with travelling to the regional centre.

16The request to hold the hearing by way of teleconference is denied on the basis that the respondent has not established that there is a Code-related need for the hearing to take place by telephone, nor indicated any reason why it would be unable to attend the hearing in the regional centre of Kingston.

17I am not seized of this matter.