Stopyn v. United Association of Plumbing & Pipefitting Union Local 67, 2012 HRTO 1796

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 20, 2012

Citation: 2012 HRTO 1796

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

WRITTEN SUBMISSIONS BY

Peter Stopyn, Applicant ) Self-represented

United Association of Journeymen )

and Apprentices of the Plumbing and )

Pipefitting Industry of the United States ) Jesse Nyman, Counsel

and Canada, Local 67, Mark Ellerker )

and Leslie Ellerker, Respondents )

iNTRODUCTION

1This Interim Decision addresses a second request to adjourn the preliminary hearing scheduled to address a request to dismiss the Application. The hearing is scheduled for September 21, 2012.

BACKGROUND

2The background to this Application is set out in the earlier Interim Decision dealing with the first request to adjourn (2012 HRTO 1696) and will be briefly repeated in part.

3The 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.

4On 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.

5An in person hearing is scheduled for September 21, 2012 to hear submissions on whether the Application should be dismissed on the basis of s. 45.1, delay and/or abuse of process.

6On August 27, 2012, the applicant made a request to adjourn the hearing (“the first request to adjourn”), on consent, for the reason that he would be preoccupied for the month of September with his daughter who is just commencing her studies at university and he would be unable to fully review all of the correspondence for the hearing. Notwithstanding the consent, the Tribunal denied the adjournment on the basis that the applicant had not pointed to any exceptional circumstances that would justify granting an adjournment (see para.12 of the Interim Decision). In addition, the Tribunal directed the parties to file any additional materials immediately (having been previously required by the Registrar to file materials by September 7, 2012).

7On September 19, 2012, the applicant emailed the Tribunal requesting that the hearing be adjourned (the “Second Request”). The applicant states that he only received the Tribunal’s Interim Decision denying his first request on September 18, 2012 following his contact with the Tribunal on that date; provides additional details about his daughter including that she has a medical condition (which is identified) and which has necessitated him travelling back and forth between Hamilton and Toronto to support her; and suggests that he is not prepared for the hearing as he was attempting to hire a solicitor and has not reviewed the material that he needs to for the hearing. As a result the applicant states that if he is compelled to attend the hearing, he will be unable to “debate” issues that he is not acquainted with due to lack of time to prepare.

8The respondents have filed submissions opposing the Second Request. The respondents state that the applicant has had more than ample time to obtain counsel if that was his wish. The respondents state that the claim of not receiving the Interim Decision is not credible. Finally, while sympathetic to the applicant’s desire to care for his daughter, the respondents state that the pleadings are neither complex nor lengthy.

9The respondents do not assert any prejudice.

DECISION

10As is apparent from the references in the earlier Interim Decision, the Tribunal is committed to the fair, just and expeditious resolution of proceedings and thus will only adjourn proceedings where there are exceptional circumstances.

11In this case, having regard to all of the circumstances, I find it appropriate to adjourn the hearing.

12I agree with the respondent that to the extent that the applicant suggests he needs an adjournment to obtain counsel, the request is not justified. However, having regard to the other circumstances, I find it would be fair, just and expeditious to grant the adjournment.

13On the issue of notice, the Tribunal sent the first Interim Decision by facsimile to the parties. The Tribunal has no facsimile confirmation that the applicant received the Interim Decision at the time it was sent. The Tribunal’s records also confirm that, as the applicant states, he contacted the Tribunal on September 18, 2012, following which the Interim Decision was re-sent to him. In light of the foregoing, I have no reason to doubt the applicant’s claim that he did not receive the Interim Decision in a timely way.

14Given that the first request to adjourn was on consent the applicant may have presumed the hearing would be adjourned which could reasonably account for his lack of preparedness. I make this observation with some caution, given that in most circumstances the mere fact of requesting an adjournment would not be a sufficient basis to fail to prepare for a scheduled hearing. However, in my view the circumstances in this case are somewhat unique in that the request was on consent, the applicant was self-represented and I have found that there was a delay in notice of the Tribunal’s initial decision on the adjournment request.

15Further the applicant has provided additional information regarding his daughter which the respondents do not challenge. I find that the information provided does provide a justification as to why the applicant faces difficult circumstances in connection with his daughter’s situation.

16Finally, I am not convinced that the issues in this case are simple requiring minimal preparation for an unrepresented applicant given that the respondent is making a number of legal arguments each of which will require consideration of factual material and case law.

17Having regard to all of the circumstances of this particular case including the absence of any claim of prejudice, I find that it would be fair, just and expeditious to cancel the hearing on September 21, 2012.

18The Adjournment Request is granted and the hearing on September 21, 2012 is cancelled.

19In the circumstances, the Tribunal directs:

1. The hearing on September 21, 2012 is cancelled;

2. By September 24, 2012, the applicant and respondents shall confirm their availability for a half day hearing on the following dates in 2012 commencing at either 9:30 to 1:00 or 1:30 to 5:00: November 21, 22, 23, 29 (afternoon only); and December 12, 13, 14, 17, 18, 19. The parties should indicate their availability for all dates and whether they are available both morning and afternoon.

3. The applicant shall comply with the Direction provided in para. 14 of the earlier Interim Decision and file immediately any additional material (documents and/or caselaw) that he intends rely on at the preliminary hearing. If the applicant does not file any further material by September 27, 2012, the applicant may not be permitted to rely on any material not provided in accordance with this Direction.