John Briner v. Ricoh Canada Inc., 2012 HRTO 1878

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Briner

Applicant

-and-

Ricoh Canada Inc.

Respondent

Interim DECISION

Adjudicator: Kathleen Martin

Date: October 3, 2012

Citation: 2012 HRTO 1878

Indexed as: Briner v. Ricoh Canada Inc.

iNTRODUCTION

1This Interim Decision addresses the respondent’s request to adjourn the hearing and provides directions to the parties regarding their failure to comply with the obligations under Rules 16 and 17. There are serious consequences for failing to comply with the disclosure obligations which are set out at the end of this Interim Decision.

BACKGROUND

2The Application was filed May 24, 2011 alleging discrimination on the basis of disability in employment. The applicant alleges that the respondent discriminated against him on the basis of disability in employment when it failed to accommodate him at work and then terminated his employment.

3A Response was filed on July 19, 2011 denying the allegations. The respondent states that the applicant recovered from his injury, was offered modified duties consistent with his medical restrictions but did not return to work. On November 8, 2010, the respondent advised the applicant that it was terminating his employment.

4On February 7, 2012, the Tribunal issued a Notice of Confirmation of Hearing scheduling the hearing for September 19 and 20, 2012. By letter dated February 14, 2012, the respondent made a timely request to re-schedule the hearing and offered dates available to the applicant and respondent.

5On February 15, 2012, the Tribunal issued a Notice of Confirmation of Hearing re-scheduling the hearing to October 22 and 23, 2012 (dates available to the parties).

6The Notice of Confirmation of Hearing summarized the requirements as follows:

Unless otherwise directed by the HRTO, not later than September 7, 2012 you must deliver to every other party and file with the HRTO:

a list of all documents you intend to rely on at the hearing;

a copy of each document on that list for the HRTO;

a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;

a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;

a statement summarizing the expected evidence of each witness;

where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;

the Statement of Delivery of the Rule 16.2 list and documents on the other parties.

7In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at para. 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

8Neither of the parties have complied with their obligation to file materials required under Rule 16 and 17 nor has any extension to the filing deadline been sought.

9On September 26, 2012, the respondent wrote to the Tribunal requesting an adjournment of the hearing on consent of the applicant. The respondent states that the applicant has “recently” indicated his intention to call expert medical evidence and that to date there has been no disclosure of the same. The respondent states that it will be objecting to the introduction of such evidence but in order to permit adequate disclosure and adequate opportunity for the respondent to prepare, and in the interest of the efficient and effective use of the Tribunal’s resources, the parties have agreed to adjourn the currently scheduled hearing dates. The respondent offers dates available to the parties.

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 stated 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.

12The request to adjourn the hearing is denied. The current hearing dates were based on dates provided by the parties. The request now being brought is well beyond the 14 day period for requesting alternative dates. While the adjournment request is premised on the claim that medical evidence may be filed which the respondent will be objecting to, in the absence of viewing the medical evidence and considering the objection, I do not find it apparent that this additional evidence, even if considered and then admitted, will prevent the efficient and effective use of the Tribunal’s resources. Further and in any event, I do not find that the reasons for the adjournment are exceptional.

13Further, given the parties’ failure to comply with their disclosure obligations, I find it appropriate to issue orders regarding disclosure.

14Having regard to the foregoing, the Tribunal orders:

I. The request to adjourn the hearing dates of October 22 and 23, 2012 is denied;

II. The applicant is directed to immediately file the materials required under Rules 16 and 17, and if the applicant has not done so by October 10, 2012, the Application may be dismissed as abandoned; and

III. The respondent is directed to immediately file the materials required under Rules 16 and 17, and if the respondent has not done so by October 12, 2012, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.