HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Yu Naka
Applicant
-and-
Canaan Transport Group Inc. and Danny Liu
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Naka v. Canaan Transport Group Inc.
WRITTEN SUBMISSIONS
Danny Liu, Respondent
Vartan Manoukian, on behalf of Danny Liu
1This matter is scheduled for hearing in Toronto on October 22 and 23, 2012.
Adjournment
2On October 18, 2012, the Tribunal received a letter from Vartan Manoukian on behalf of the personal respondent Danny Liu. This letter advises that the representative on record, Kenny Yau, is not available to attend the hearing because he was served with a subpoena duces tecum on October 9, 2012.
3Mr. Manoukian advises that he is not in a position to “go on the record at this time” because he has not had time to adequately prepare for the hearing and regardless he is not available on October 22, 2012, because he has scheduled appearances in Court.
4Mr. Liu intends to appear at the hearing on October 22, 2012, to seek an adjournment of the hearing date. Mr. Manoukian advises that if such an adjournment is granted he will get on record and he has provided Mr. Liu with a list of his availability to reschedule the hearing.
5The Tribunal provided the opportunity to the other parties to respond to this letter but no response was received.
Decision
6The Tribunal’s 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.
7In 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.
8The Tribunal has granted adjournments in cases in which parties find themselves unrepresented without sufficient notice through no fault of their own. See: Sander v. Coca-Cola Bottling Company, 2012 HRTO 1181.
9Having reviewed this matter, I find that there are exceptional circumstances which warrant adjourning the scheduled hearing. I note that Mr. Yau should have immediately contacted the Tribunal after he was served with the subpoena to request an adjournment of the hearing and I have some concerns about his failure to do so.
10Though, I have not been provided with a copy of the subpoena to confirm that in fact Mr. Yau is not available to attend the hearing, regardless it remains that Mr. Liu has had less than two weeks’ notice to try to obtain a new legal representative. I find that Mr. Liu was diligent in retaining legal representation immediately in this matter and that through his conduct throughout this proceeding he has demonstrated his intention to be represented. Mr. Liu finds himself unrepresented, with very short notice, through no fault of his own which has a serious impact on his ability to defend himself at the hearing.
11Though I note that Mr. Liu intends to make his formal request for adjournment at the hearing on October 22, 2012, I find that in these circumstances it is appropriate to grant the adjournment in advance of the hearing so that the parties may avoid the cost and time associated with any preparation and attendance at the hearing.
12The Tribunal orders the adjournment of the October 22 and 23, 2012 hearing.
Case Management Issues
13At this time, the Tribunal has no legal representative on record nor Mr. Liu’s contact information. Also, Mr. Liu has failed to file any hearing materials as required by the Rules and on October 16, 2012, the Tribunal issued Interim Decision 2012 HRTO 1961 which ordered him to deliver and file these materials. It is appropriate to revisit the timelines stipulated in that Interim Decision given the adjournment of the hearing.
Order
14The Tribunal orders as follows:
a. The October 22 and 23, 2012 hearing is adjourned and the Tribunal shall canvass the availability of the parties to reschedule the hearing;
b. Danny Liu will by no later than October 25, 2012 provide to the other parties and the Tribunal his own contact information and, if applicable, the contact information of his new legal representative;
c. Danny Liu will by no later than November 5, 2012 deliver to the other parties and file with the Tribunal 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.
d. Danny Liu will by no later than November 5, 2012 deliver to the other parties a witness list 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.
e. Danny Liu will by no later than November 5, 2012 confirm whether he is prepared to confine his evidence to the statements made in his Response, in which case his Response will serve as his will-say statements.
15In the event that Mr. Liu does not comply with the orders in this Interim Decision, the Tribunal may not permit him to rely on a document or call any witnesses during the course of the hearing in accordance with the Tribunal’s Rules.
Dated at Toronto, this 19th day of October, 2012.
“Signed by”
Geneviève Debané
Vice-chair