Maurice v. Xstrata Zinc Canada, 2012 HRTO 1773

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mike Maurice

Applicant

-and-

Xstrata Zinc Canada

Respondent

INTERIM DECISION

Adjudicator: Geneviève Debané

Date: September 19, 2012

Citation 2012 HRTO 1773

Indexed as: Maurice v. Xstrata Zinc Canada

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”), scheduled for hearing in Thunder Bay on October 18 and 19, 2012.

2In the Confirmation of Hearing Notice issued and in accordance with Rules 16 and 17 of the Tribunal’s Rules of Procedure, the parties were directed to exchange copies of all arguably relevant documents by April 21, 2012 and to deliver to each other and file with the Tribunal copies of all documents on which they intend to rely at the hearing, as well as statements of the intended evidence of all witnesses, by September 4, 2012.

3On March 30, 2012, the Tribunal granted the applicant’s request to extend the time for the parties to exchange all arguably relevant documents to May 31, 2012 because he stated that he was consulting with a lawyer in May.

4On September 4, 2012, the Tribunal was advised by the respondent that the applicant had not delivered his arguably relevant documents. The applicant had also not filed with the Tribunal copies of all documents upon which he intends to rely at the hearing, nor had he filed statements of the intended evidence of his witnesses.

5On September 7, 2012 the Tribunal issued a Case Assessment Direction which directed the applicant to comply with his obligations under the Rules by no later than September 20, 2012.

6On September 12, 2012, the applicant requested an adjournment of the hearing until after December 2012 stating that because of the health of his daughter he has been unable to deal with anything else this year.

7On September 13, 2012, the respondent advised that consented to the adjournment request, as long as certain conditions were met by the applicant, including that he provide his documents to the respondent by September 20, 2012.

Decision

8For the reasons that follow the adjournment request is denied.

9The Tribunal has made it clear on numerous occasions that adjournments, particularly at the last minute, are not automatically granted. In its Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, it states that:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or 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 adjournment, even when all parties consent.

10In 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 [now fourteen] 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 [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

11In this Application, I do not find that the reasons the applicant has provided to be so exceptional that an adjournment is warranted. The applicant has provided insufficient evidence which would justify the adjournment request and his inability to comply with his obligations under the Rules. Further, there is no explanation as to why he cannot attend the hearing as scheduled in October 2012 but he could attend a hearing a month or so later.

Order

12The Tribunal Orders:

a. The applicant’s request for an adjournment of the hearing is denied;

b. The applicant will immediately deliver to the respondent all arguably relevant documents and confirm in writing to the Tribunal that he has done so by no later than September 28, 2012;

c. The applicant will immediately deliver to the respondent all documents upon which he intends to rely at the hearing (“Hearing Document List”) and a copy of each document on that list, or confirmation that he does not intend to rely on any documents during the course of the hearing. The applicant will also file with the Tribunal a copy of the Hearing Document List and a copy of each document on that list, or advise the Tribunal in writing that he does not intend to rely on any documents during the hearing by no later than September 28, 2012;

d. The applicant will immediately deliver to the respondent a witness list (which should include the name of any witness who intends to testify) and a detailed summary of the expected evidence (will-says) of each witness. Specific events should be described and, if possible, specific dates should be given. The witness list and the will-say statements of each witness must be filed with the Tribunal no later than September 28, 2012; and

e. The applicant will immediately confirm whether he is prepared to confine his evidence to the issues and allegations made in the Application, in which case the Application will serve as his will-say statements. The applicant must confirm with the Tribunal whether he intends to confine his evidence to the Application no later than September 28, 2012.

f. The applicant must confirm that he is proceeding with this Application and that he will be attending the scheduled hearing by no later than September 28, 2012.

13In the event that the applicant does not comply with the Orders in this Interim Decision, the Tribunal may deem the applicant to have abandoned the Application.

Dated at Toronto, this 19^th^ day of September, 2012.

“Signed by”

Geneviève Debané

Vice-chair