Pilkey v. Guild Automotive Restorations Inc., 2012 HRTO 209

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christina Pilkey

Applicant

-and-

Guild Automotive Restorations Inc. operating as The Guild of Automotive Restorers and Frank Morea

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: January 27, 2012

Citation: 2012 HRTO 209

Indexed as: Pilkey v. Guild Automotive Restorations Inc.

WRITTEN SUBMISSIONS

Christina Pilkey, Applicant ) Kingsley Laurin, Counsel

Guild of Automotive Restoreres Inc and ) Did not respond Frank Morea, Respondents )

1This Interim Decision addresses the applicant’s requests to: (a) add the ground of disability; and (b) to amend the Application to name the correct corporate respondent. It also addresses an inquiry made by a lawyer with whom the respondents have consulted about the possibility of rescheduling or adjourning the hearing.

BACKGROUND

2On October 15, 2010, the applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination in employment on the grounds of sex, family status and reprisal.

3The applicant alleges that she was harassed, disciplined and ultimately terminated because she is a woman with children and because she complained about the differential treatment she was receiving in what she describes as a male-dominated workplace. She alleges further that her employer failed to investigate her complaints and withdrew its accommodation of the applicant’s child care needs following her complaints about the treatment she had been receiving.

4On December 21, 2010, the respondents filed a very lengthy and detailed Response where they deny the applicant’s allegations of discrimination and assert the applicant had significant performance problems which led to her termination. In the course of describing the applicant, the respondents make reference to the applicant’s learning disability, her severe depression, her emotional outbursts and disorderly conduct.

5On August 17, 2011, hearing dates were set in this matter for February 16 and 17, 2012.

6On December 5, 2011, the applicant filed a Request for Order seeking to amend the Application to add the ground of disability.

7On December 12, 2011, the applicant filed a Request for Order to amend the Application to name Guild Automotive Restorations Inc. operating as The Guild of Automotive Restorers as the correct corporate respondent.

8The respondents did not respond to the applicant’s Requests for Orders.

Applicant’s Requests for Orders

9In determining requests to amend Applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondents.

10I am satisfied that the applicant should be permitted to amend the Application to include the additional ground of disability. The applicant made the Request because of the facts alleged by the respondents in their pleading. The respondents did not respond to the Request and therefore, did not identify any prejudice to them if the Request is granted. The addition of the ground of disability responds to the respondents’ Response and does not raise new issues that would not be raised by them in defending the Application.

11The applicant advises that she named The Guild of Automotive Restorers Inc. in her Application because that was the name used by the company on its letterhead, policy manuals, business cards and website.

12In conducting a corporate search on December 7, 2011, it was determined that The Guild of Automotive Restorers is a business name and Guild Automotive Restorations Inc. is the corporation located at 44 Bridge Street, Bradford, Ontario, the place of the applicant’s employment. The applicant’s record of employment names Guild Automotive Restorations Inc. as the employer.

13It appears that The Guild of Automotive Restorers is the business named used by Guild Automotive Restorations Inc. As such, the style of cause is amended to name the corporate respondent as Guild Automotive Restorations Inc. operating as The Guild of Automotive Restorers.

Request for an Adjournment

14On January 23, 2012, the Tribunal received correspondence from legal counsel, Alistair Riswick, advising that he had been consulted by the respondents. He further advised that he was unable to attend the hearing scheduled for February 16 and 17, 2012 and inquired about the possibility of rescheduling the hearing. Mr. Riswick advised the Tribunal that he had spoken with counsel for the applicant and had been advised that the applicant is not opposed to an adjournment of the hearing date.

15The Tribunal’s Practice Directions and caselaw are clear that adjournments will be granted only in exceptional circumstances, and retention of new counsel is not such a circumstance. The Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments 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.

The HRTO typically will not adjourn a hearing date because the parties wish to “engage in settlement discussions” or are “close to a deal.” The HRTO encourages mediation and settlements, and will assist the parties in this regard. Where parties believe they may be able to resolve a matter shortly before the scheduled hearing, they should advise the Registrar and the HRTO may make a mediator and mediation room available. The parties may also request mediation/adjudication in accordance with Rule 15.2.1 (and Rule 8.5 for s. 53(3) and 53(5) applications). However, the HRTO discourages the cancellation or adjournment of hearing dates so that the parties can explore settlement.

16In Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 (“Vallentyne”) at para. 6 the Tribunal held:

The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for an adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled.

17In Vallentyne 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. (…) 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 [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

18Consulting with counsel unavailable to attend a scheduled hearing does not constitute exceptional circumstances that would permit an adjournment. The respondents have known since August 2011 that the hearing has been scheduled for February 16 and 17, 2012. There is no information before the Tribunal that they made any attempt to retain counsel prior to the letter from Alistair Riswick, three weeks before the hearing. It is the responsibility of the respondents to retain counsel available on the scheduled hearing dates. The hearing will proceed on February 16 and 17, 2012.

Order

19The applicant’s Requests to amend the Application to add the ground of disability and to name the correct corporate respondent are granted. The style of cause is amended to name the corporate respondent as Guild Automotive Restorations Inc. operating as The Guild of Automotive Restorers.

20The hearing will proceed on February 16 and 17, 2012.