Iole Di Giovanni v. Universal Workers Union, LIUNA Local 183 and Durval Teceira, 2012 HRTO 191

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Iole Di Giovanni

Applicant

-and-

Universal Workers Union, LIUNA Local 183 and Durval Teceira

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: January 25, 2012

Citation: 2012 HRTO 191

Indexed As: Di Giovanni v. Universal Workers Union

1This Case Assessment Direction is to address the request from counsel for the personal respondent for an adjournment of the February 6, 7, and 8, 2012 hearing dates in this matter; and to address the parties’ ongoing failure to comply with their pre-hearing disclosure obligations.

BACKGROUND

2At an earlier point in this proceeding, the applicant was represented by counsel, John Evans. However, Mr. Evans got off the record as counsel to the applicant on July 26, 2011. Since that time, the applicant has been self-represented.

3On August 10, 2011, the Tribunal sent the parties a Notice of Hearing advising that the Application would be heard by the Tribunal on February 6, 7 and 8, 2012. The Notice was sent to the applicant and to Tracy Kay, the legal counsel who, according to the Responses filed by the personal respondent and the respondent union, was representing both respondents.

4The Notice of Hearing notified the parties that, pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, they were obliged to exchange with one another and to file with the Tribunal by no later than December 23, 2011 copies of any documents they intended to rely upon at the at the hearing of this matter, lists of the witnesses whom they intended to call, and a summary of each witness’ anticipated evidence (i.e. “will-say statements”).

5Notwithstanding the detailed instructions in the Notice of Hearing, neither the applicant nor the respondents complied with their pre-hearing disclosure obligations under the Tribunal’s Rules of Procedure.

6Accordingly, on January 12, 2012, the Tribunal issued a Case Assessment Direction directing the parties to exchange with one another and to file with the Tribunal by no later than January 23, 2012 copies of the documents they intended to rely upon at the hearing, lists of their witnesses and their witnesses’ will-say statements. In its January 12, 2012 Case Assessment Direction, the Tribunal advised the parties that there would be serious consequences if they failed to comply with the Tribunal’s directions. Specifically, the Tribunal advised the applicant that if she failed to comply with the Tribunal’s directions, her Application could be dismissed as abandoned. The Tribunal advised the respondents that their failure to comply with the Tribunal’s directions regarding pre-hearing disclosure could lead to the Tribunal taking any or all of the steps in Rule 5 of the Tribunal’s Rules of Procedure, including not permitting the respondents to present witnesses or documents at the hearing of the Application.

7Notwithstanding the Tribunal’s very clear directions in this matter, neither the applicant nor the respondents have complied with the directions in the Tribunal’s January 12, 2012 Case Assessment Direction in this matter.

REQUEST FOR ADJOURNMENT

8On January 23, 2012, counsel of record for both respondents, Ms Kay, wrote to the Tribunal to say that she had been advised on July 26, 2011 that John Evans, the applicant’s previous legal counsel in this matter, would be acting for the respondent union and that she was to transfer her file to him. Ms Kay continued to be retained to represent the personal respondent. Ms Kay indicates that she was reluctant to transfer the respondent union’s file to Mr. Evans because she was concerned that doing so would compromise the personal respondent’s position and because it appeared to her that Mr. Evans, having formerly represented the applicant in this matter, had a “conflict”.

9Ms Kay indicates that she has made several attempts to speak to Mr. Evans to “sort out” this matter since late December 2011 or early January 2012, but she has been unable to reach him.

10Ms Kay requests that the hearing in this matter be adjourned for three months in order to give her time to locate and obtain instructions from her client, Mr. Terceira, the personal respondent. Ms Kay indicates that the personal respondent was President of the respondent union at the time Ms Kay was initially retained to represent both respondents and that she had contacted Mr. Terceira at the offices of the respondent union. However, the personal respondent has not been in a leadership role at the respondent union since elections were held, apparently in or around July 2011, and Ms Kay has not had any contact information for him since that time.

11Ms Kay also seems to suggest that the hearing ought to be adjourned so that someone can confirm whether the applicant is pursuing her Application against both respondents. Ms Kay indicates that this information is required so that the parties can determine whether there are any conflicts.

12The January 23, 2012 request for an adjournment is denied. The circumstances identified in the January 23, 2012 letter from counsel for the personal respondent are not the sort of extraordinary circumstances that would warrant an adjournment of the hearing.

Time to Clarify the Identity of the Parties and whether there are any conflicts

13There is no need to adjourn the hearing so that the respondents can verify with the applicant whether she intends to proceed with the Application, as filed, against both respondents. To the Tribunal’s knowledge, the applicant has never indicated that she does not intend to proceed with the Application, as filed, against both respondents, and so both respondents continue to be parties to the Application.

14Even if the applicant has indicated to one or both of the respondents that she may not proceed against one or both of them, unless and until the applicant communicates this to the Tribunal, and unless and until the Tribunal makes an Order removing a party to the proceeding, both respondents must proceed on the basis that they are parties to the Application, with corresponding obligations, including their obligations regarding pre-hearing disclosure pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure. It seems to me that any determination that the respondents and/or their counsel have to make about this matter ought to be based on the fact that both respondents are parties to the Application.

15As for whether there are any “conflicts”, it seems clear to me that Mr. Evans cannot act for any respondent in this matter because he previously acted as counsel for the applicant in this matter (see Rule 2.04(4)(a) of the Law Society of Upper Canada’s Rules of Professional Conduct). I hasten to add that Mr. Evans himself has never sought to get on the record as counsel for the respondent union in this matter. When he got off the record as counsel to the applicant on July 26, 2011, Mr. Evans did not indicate that he sought to act for another party to the proceeding. Nor has Mr. Evans communicated with the Tribunal with respect to this matter since his letter of July 26, 2011. Ms Kay indicates that she was advised on July 26, 2011 that Mr. Evans would be representing Universal Workers Union, LIUNA Local 183 in respect of this matter, but she does not say who the letter was from or whether Mr. Evans was privy to it.

16In any event, I am not persuaded that a need to clarify the identity of the parties to this proceeding constitutes a reason to adjourn the hearing at this stage.

Time to Locate Personal Respondent

17The main reason given in support of the request for an adjournment of the February 2012 hearing dates is that counsel for the personal respondent needs time to locate and obtain instructions from her client, the personal respondent. Ms Kay indicates that she previously contacted her client, the personal respondent, at the offices of the respondent union. Ms Kay indicates she has been unable to reach Mr. Terceira at the union’s offices since in or around July 2011 and that she has therefore not been able to obtain instructions from him with respect to this matter. Ms Kay indicates that she needs three months to locate her client and obtain instructions from him.

18It is not clear why Ms Kay could not have done whatever she now proposes to do to locate Mr. Terceira in a more timely way, given that she has been aware of this situation for approximately six months and the Notice of Hearing was sent to her more than five months ago.

19In any event, the issue is whether the circumstances warrant granting an adjournment of the hearing to the personal respondent, Mr. Terceira. In my view, they do not. This is not a situation where the personal respondent has not received of the Notice of the Hearing through no fault of his own. The personal respondent has been aware of the Application since it was delivered to him in March 2010. He retained legal counsel to represent him in this matter and filed a Response to the Application, separate from the union’s Response, in May 2010. As a party to the proceeding, the personal respondent is responsible for keeping the Tribunal and the other parties informed of his up-to-date contact information (Rule 1.13 of the Tribunal’s Rules of Procedure). It appears that the personal respondent has not done this. However, the personal respondent’s failure to keep the Tribunal and the legal counsel he retained to represent him in this matter apprised of his contact information is not a basis upon which to adjourn the hearing.

20The request to adjourn the hearing is denied and the hearing will proceed as scheduled on February 6, 7, and 8, 2012 (unless the Application ends up being dismissed as abandoned before the hearing, which is addressed below).

DIRECTIONS TO UNION TO PROVIDE CONTACT INFORMATION FOR PERSONAL RESPONDENT AND RESPONDENT UNION

21Notwithstanding the above, it is obviously desirable to obtain the personal respondent’s up-to-date contact information as soon as possible. To this end, the Tribunal directs the current President and/or officers of the respondent union to provide the Tribunal, Ms Kay and the applicant with up-to-date contact information for the personal respondent, Mr. Terceira, including his address, telephone and fax numbers, and email address, to the fullest extent possible. Such information ought to be provided to the Tribunal, Ms Kay and the applicant by fax and/or email immediately and in any event by no later than noon on January 26, 2012.

22Ms Kay’s letter of January 23, 2012 suggests that she is no longer retained to represent the respondent union in this matter and, in fact, that her retainer to represent the respondent union ended on July 26, 2011. However, until Ms Kay’s January 23, 2012 letter, no one ever advised the Tribunal that the contact information for the respondent had changed or that Ms Kay was no longer representing it.

23Like the personal respondent, the respondent union is a party to this proceeding and therefore has an ongoing obligation to keep the Tribunal informed of its up-to-date contact information and contact information for its representative. In the circumstances, the Tribunal directs the current President and/or officers of the respondent union to provide the Tribunal and the other parties to the Application with its up-to-date contact information, including the name of a contact person at the union, his or her telephone and fax numbers, and his or her email address. Such information ought to be provided by fax and/or email immediately and in any event by no later than noon on January 26, 2012.

PARTIES’ FAILURE TO COMPLY WITH PRE-HEARING DISCLOSURE REQUIREMENTS

24As noted above, in its Case Assessment Direction of January 12, 2012, the Tribunal advised the parties of the consequences of their failure to comply with the Tribunal’s directions regarding their pre-hearing disclosure requirements. In particular, the Tribunal advised the applicant that if she failed to comply with the Tribunal’s directions regarding pre-hearing disclosure of documents, witnesses and will-say statements by January 23, 2012, her Application might be dismissed by the Tribunal as abandoned. Moreover, it was clear from the Case Assessment Direction that even if the applicant did not intend to rely upon any documents at the hearing of the Application or seek to call any other witnesses, the applicant was still required to file a will-say statement for herself, if she intended to testify, if only to confirm that she would only be attesting to the facts outlined in the Application filed with the Tribunal.

25The applicant’s deadline for complying with the Tribunal’s January 12, 2012 directions has now expired, and the applicant has not provided the Tribunal with the documents upon which she intends to rely at the hearing, or will-say statements for any witnesses, including herself, nor has the applicant communicated with the Tribunal in any way since Mr Evans got off the record as her counsel on July 26, 2011. In the circumstances, it appears that the applicant does not intend to proceed with this Application.

26The Tribunal directs the applicant to communicate with the Tribunal, via fax or email, by no later than 4:00 p.m. on January 27, 2012 to advise whether she intends to proceed with this Application. In the event that the applicant does not confirm that she intends to proceed with his Application by 4:00 p.m. on January 27, 2012, this Application will be dismissed as abandoned by the Tribunal.

27Nothing in this Interim Decision should be interpreted as relieving the applicant, or the respondents, from their ongoing obligations to comply with the Tribunal’s Rules of Procedure or the Tribunal’s January 12, 2012 directions to them.

DIRECTIONS

28The Tribunal directs the following:

a. The Tribunal directs the current President and/or officers of the respondent union to provide the Tribunal, Ms Kay and the applicant with up-to-date contact information for Mr. Terceira, including his address, telephone and fax numbers, and email address. Such information ought to be provided by fax and/or email immediately and in any event by no later than noon on January 26, 2012.

b. The Tribunal directs the current President and/or officers of the respondent union to provide the Tribunal with its up-to-date contact information, including the name of a contact person at the union, his or her address, telephone and fax numbers, and his or her email address. Such information ought to be provided by fax and/or email immediately and in any event by no later than noon on January 26, 2012.

c. The Tribunal directs the applicant to communicate with the Tribunal and the other parties to the Application, via fax or email, by no later than 4:00 p.m. on January 27, 2012 to advise whether she intends to proceed with this Application, failing which the Application will be dismissed as abandoned.