Benedicto v. Auralite Panel Products Limited, 2012 HRTO 2194

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mitchell Benedicto

Applicant

-and-

Auralite Panel Products Limited and Mikey Iwanyszyn

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: November 23, 2012

Citation: 2012 HRTO 2194

Indexed as: Benedicto v. Auralite Panel Products Limited

WRITTEN SUBMISSIONS

Mitchell Benedicto, Applicant

Michelle Mulgrave, Counsel

Auralite Panel Products Limited and Mikey Iwanyszyn, Respondents

Timothy Allan Pusztai, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ancestry, ethnic origin and reprisal.

2On April 23, 2012, the Tribunal issued a Notice of Confirmation of Hearing (“Notice”), indicating that the Application would be heard on November 26 and 27, 2012.

3On November 14, 2012, the applicant filed a Request for an Order During Proceedings (“Request”) seeking details setting out the particular evidence the respondents’ witness will give. The applicant submitted that the respondents’ witness summaries disclosed on October 10, 2012 are not detailed and do not set out the particular evidence each witness will give. The applicant referred to the Tribunal’s decision in C.D. v. Wal-Mart Canada, 2010 HRTO 426, at para. 7, wherein the Tribunal stated as follows:

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.

4On November 14, 2012, the applicant also indicated that, in preparation for the hearing, it was noticed that a recording earlier disclosed to the respondents, pursuant to Rule 16.1 of the Tribunal’s Rules, was incomplete. The applicant delivered and filed a “complete” or “second” recording.

5On November 20, 2012, the respondents provided a Response to the applicant’s Request, indicating that they could provide the particulars requested by the applicant if provided with sufficient time to do so. The respondents requested an adjournment of the hearing dates, indicating that the applicant consented to an adjournment.

6On November 21, 2012, the Tribunal received correspondence from the applicant requesting that, if possible, one of the scheduled hearing dates be converted to a mediation date. The Tribunal notes that it appears this matter proceeded to mediation at the Tribunal on March 23, 2012, but was not resolved.

Adjournment Request

7In requesting an adjournment, the respondents submit that the 12-day period between delivery of the applicant’s Request and the first scheduled hearing date does not provide sufficient time to meet with and prepare witnesses in order to provide the particulars requested. The respondents also submit that the second recording provided on November 14, 2012 contains several more minutes of substantial conversation, directly relevant to matters raised in the Application, and will drastically affect witness and hearing preparation. The respondents submit that there is insufficient time to address matters raised by this evidence, without causing severe prejudice to the respondents’ case. The respondents also submit that, because of the applicant’s delivery of the second recording, providing the requested particulars entails providing not only particulars in addition to the witness statements already provided, but “some entirely new witness statements”, as the second recording must be introduced to the respondents’ witnesses.

8The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states that

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or 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.

9In 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 [now fourteen] 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 [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

10Based on the information that the parties have provided to the Tribunal thus far, I am not satisfied that the respondents have established exceptional circumstances to justify the granting of an adjournment.

11Pursuant to Rule 17 of the Tribunal’s Rules, and as set out in the Tribunal’s Notice dated April 23, 2012, the parties in the present case were required to deliver “a brief statement summarizing each witness’ expected evidence” by October 12, 2012. While the respondents delivered and filed materials pursuant to Rule 17 on October 11, 2012, it appears from the applicant’s November 14, 2012 Request, that the applicant is of the view that the respondents’ materials are insufficient.

12In addition, on November 14, 2012, the applicant delivered and filed a second recording of a conversation that he intends to rely on, as the recording earlier provided to the respondents was not complete. The respondents indicate that the recording contains several more minutes of conversation.

13As I understand the respondents’ position, while they have indicated that they can provide the particulars requested by the applicant, they need more time, as a result of both the timing of the applicant’s Request and the delivery of the second recording with several more minutes of conversation. The respondents also appear to submit that the delivery of the second recording on November 14, 2012, has resulted in insufficient time to prepare for the hearing without causing severe prejudice to their case.

14In my view, the respondents have provided insufficient information to support an adjournment at this stage of the proceedings. The respondents were required to provide witness summaries by October 12, 2012. In addition, while the respondents assert prejudice as a result of the November 14, 2012 delivery of a second recording with several more minutes of conversation, I am not satisfied, based on the information provided to date, that the circumstances are exceptional such that granting the request to adjourn the scheduled hearing dates would be appropriate.

15The hearing will proceed as scheduled on November 26 and 27, 2012. In the circumstances, and considering the timing of the applicant’s Request and the parties’ subsequent submissions, the applicant’s Request and any issues arising out of the parties’ disclosure requirements, including any assertions of prejudice, can be addressed at the hearing as necessary.

16With respect to the applicant’s request for further mediation, the Tribunal directs the parties’ attention to Rule 15A of the Tribunal’s Rules which provides:

15A.1 With the agreement of the parties, the Tribunal member hearing an Application may act as mediator. In such circumstances, the mediator may continue to hear the matter as adjudicator.

15A.2 Where the parties agree to mediation-adjudication, they must sign a mediation-adjudication agreement before the mediation commences.

Order

17The request for an adjournment is denied. The hearing will proceed on November 26 and 27, 2012.