Matthews v. Dicken’s Burlington Inc., 2012 HRTO 2046

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julia Matthews

Applicant

-and-

Dicken’s Burlington Inc., Darryl Vermeulen and Ryan Varo

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: October 25, 2012

Citation: 2012 HRTO 2046

Indexed as: Matthews v. Dicken’s Burlington Inc.

1This is an Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application is scheduled to be heard on October 29 and 30, 2012, in Toronto.

REQUEST FOR ADJOURNMENT

2On October 24, 2012, the Tribunal received a letter from counsel for the personal respondent, Darryl Vermeulen, requesting that the October 29 and 30, 2012 hearing dates in this matter be adjourned. The stated basis for the adjournment request is that the personal respondent, Darryl Vermeulen, requires additional time to prepare for the hearing. He submits that this is because he did not receive notice of the hearing in this matter until October 5, 2012 and has therefore only recently retained counsel to represent him.

3According to counsel for Mr. Vermeulen, the other respondents consent to the adjournment request. However, the applicant, who currently resides in British Columbia, opposes it. She submits that she has already taken time off work and travelled to Toronto, at significant expense, to attend the October 29 and 30, 2012 hearing.

BACKGROUND

4On March 23, 2012, the Tribunal sent the parties a Notice of Confirmation of Hearing advising when and where the hearing of the Application would take place.

5The Tribunal made an error in Mr. Vermeulen’s mailing address when it sent him his copy of the Notice. Specifically, although the street address and postal code on the letter to Mr. Vermeulen were correct, the letter was addressed to “Burlington”, when it should have been addressed to “Milton”.

6In any event, it appears that the letter did reach the Milton address provided by Mr. Vermeulen in his Response to the Application. I say this because the Notice that was mailed to Mr. Vermeulen was returned to the Tribunal with the words “moved” and “not at this address almost one year” written on the envelope. In addition, someone had crossed out the word “Burlington” and written “Milton” in its stead.

7In any event, on April 16, 2012, the Tribunal resent the Notice of Confirmation of Hearing to Mr. Vermeulen at the email address provided by him in his Response to the Application. (Mr. Vermeulen had consented in his Response to the delivery of documents to him by email.) In its April 16, 2012 email, the Tribunal also reminded Mr. Vermeulen that, pursuant to the Tribunal’s Rules of Procedure, he was required to immediately advise the Tribunal and the other parties of any changes to his address or contact information. The email did not “bounce back” to the Tribunal as undeliverable. Mr. Vermeulen did not respond to the email.

8On October 5, 2012, Mr. Vermeulen emailed the Tribunal to update his contact information. In his email, Mr. Vermeulen indicated that he had changed his contact information as of June 1, 2012 and had not received anything sent to the previous address, presumably since that date. The Tribunal responded on October 5, 2012 by emailing Mr. Vermeulen documents and correspondence which had previously been sent to his old contact information after June 1, 2012, including a September 2012 Case Assessment Direction, reiterating, among other things, that the hearing was scheduled to proceed on October 29 and 30, 2012.

9In her October 24, 2012 letter, counsel for Mr. Vermeulen submits that Mr. Vermeulen moved in May 2011 (which would seem to be at odds with Mr. Vermeulen’s October 5, 2012 email indicating that he moved in June 2012). In addition, counsel submits that Mr. Vermeulen lost his BlackBerry phone “in the spring of 2012” and did not reactivate the email address associated with it, i.e. the email address he had provided to the Tribunal. Counsel submits that Mr. Vermeulen forgot to notify the Tribunal of these changes to his contact information and consequently did not receive notice of the October 29 and 30, 2012 hearing dates until he received the Tribunal’s October 5, 2012 email.

10Mr. Vermeulen submits that after learning of the October 2012 hearing dates, he quickly took steps to retain counsel to represent him at the upcoming hearing and has recently succeeded in doing so.

ANALYSIS AND DECISION

11According to the Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments”, requests for adjournments which are made outside the ordinary time limit for rescheduling requests, as this one is, will only be granted in extraordinary circumstances. The onus of establishing that extraordinary circumstances exist which warrant an adjournment rests on the party seeking the adjournment.

12In the circumstances of this case, I am not persuaded that extraordinary circumstances exist which warrant the adjournment of the hearing.

13Assuming without finding that Mr. Vermeulen did not become aware of the October 29 and 30, 2012 hearing dates in this matter until October 5, 2012, the responsibility for this must lay with Mr. Vermeulen himself. In this regard, I note that Mr. Vermeulen attended mediation in this matter at the Tribunal in October 2011 and therefore knew or ought to have known, as of that time, that the Application was proceeding and would be scheduled for a hearing. Yet, Mr. Vermeulen did not notify the Tribunal of any change in his contact information until October 2012 – apparently more than 16 months after his mailing address had changed and more than five (5) months after his email address had changed. In my view, it would not be appropriate to grant Mr. Vermeulen’s last-minute request for an adjournment where the alleged need for such an adjournment stems from his own failure to keep the Tribunal apprised of changes in his contact information.

14The fact that Mr. Vermeulen did not make his adjournment request for more than two weeks after he submits he learned of the October 29 and 30 hearing dates (i.e. on October 5, 2012) is another factor that weighs against his request for an adjournment. So too does the fact that, by the time Mr. Vermeulen did make his adjournment request, the applicant had already taken time off work and travelled to Toronto for the hearing at significant expense.

15Finally, to the extent that the applicant’s adjournment request stems from his failure to retain counsel before October 2012, the Tribunal has often held that a party’s failure to retain counsel in a timely manner does not constitute an extraordinary circumstance that warrants adjournment of the hearing, including when counsel is unavailable or unprepared to proceed on the scheduled date: Pazhaidam v. North York General Hospital, 2011 HRTO 1663; Davie v. PMA Brethour Real Estate, 2009 HRTO 1198; Wilson v. York (Regional Municipality), 2009 HRTO 2020; Schenk v. OSAD, 2010 HRTO 446; Vallentyne v. Royal Canadian Legion, 2009 HRTO 660. I note, however, that there is no suggestion in this case that Mr. Vermeulen or his newly retained counsel are unavailable to attend the hearing. Rather, Mr. Vermeulen seeks additional time to prepare for the hearing. Having reviewed the Application and Mr. Vermeulen’s Response to it, however, I cannot see why Mr. Vermeulen cannot be prepared to proceed on the scheduled dates.

16In sum, Mr. Vermeulen has failed to establish that he requires an adjournment due to extraordinary circumstances as opposed to his own failure to comply with his requirements as a party to the Application and/or retain counsel in a timely manner. His request for an adjournment is denied accordingly and the hearing will proceed as scheduled.

REQUEST TO FILE WITNESS STATEMENTS AND/OR DOCUMENTARY EVIDENCE

17In her October 24, 2012 letter, counsel for Mr. Vermeulen asks that Mr. Vermeulen be permitted to file witness statements and documentary evidence in this matter.

18In the circumstances, I hereby direct Mr. Vermeulen to file such materials with the Tribunal and deliver them to the other parties as soon as possible. In preparing his witness statements, Mr. Vermeulen is reminded that witness statements should 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 who may be called to testify, including the personal respondent(s). However, where the Response filed itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Response is complete and reflects the evidence that will be given by the personal respondent.

19This Interim Decision does not preclude the applicant from pursuing her objection to Mr. Vermeulen’s evidence on the basis that he has not provided his witness statements and/or documents within the time frames established by the Tribunal’s Rules of Procedure. Such objection will be determined at the hearing, having regard to the relevant factors, including, but not limited to, whether any prejudice caused by the late disclosure of Mr. Vermeulen’s witness statements and/or documents may be cured other than by excluding the proposed evidence.