HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeannie Howe

Applicant

-and-

SP Data Capital Corporation and Cheryl Tost

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: December 12, 2012

Citation: 2012 HRTO 2332

Indexed as: Howe v. SP Data Capital Corporation

WRITTEN SUBMISSIONS

Jeannie Howe, Applicant ) Self-represented

SP Data Capital Corporation and ) Sara Benincasa, Representative

Cheryl Tost, Respondents )

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The hearing is scheduled for January 7, 2013.

2On December 10, 2012, the respondents requested an adjournment of the hearing because a member of the corporate respondent’s senior management team is unable to attend the hearing because he will be out of the country at that time. The applicant consents to the adjournment. For the reasons below, the adjournment request is denied.

3The Tribunal will only grant an adjournment in exceptional circumstances. In 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.

DECISION

4The reasons for the adjournment request do not constitute exceptional circumstances that would permit an adjournment. The respondents have known since May 2012 that the hearing has been scheduled for January 7, 2013. The unavailability of a member of the corporate respondent’s senior management team does not constitute the exceptional circumstances necessary to grant an adjournment of the hearing. For this reason, the adjournment request is denied.

CASE MANAGEMENT

5The parties have not complied with their obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. There are serious consequences for the case if this step is not taken, set out at the end of this Interim Decision.

6The Notice of Confirmation of Hearing summarized the requirements as follows:

• Unless otherwise directed by the HRTO, not later than November 23, 2012 you must deliver to every other party and file with the HRTO:

• a list of all documents you intend to rely on at the hearing;

• a copy of each document on that list for the HRTO;

• a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;

• a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;

• a statement summarizing the expected evidence of each witness;

• where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;

• the Statement of Delivery of the Rule 16.2 list and documents on the other parties.

7In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at para. 7:

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.

8The Tribunal directs:

a. The applicant and the respondents will immediately deliver to the other party all documents upon which they intend to rely at the hearing (“Hearing Document List”) and a copy of each document on that list, or confirmation that they do not intend to rely on any documents during the course of the hearing. The parties will also file with the Tribunal a copy of the Hearing Document List and a copy of each document on that list, or advise the Tribunal in writing that they do not intend to rely on any documents during the hearing, no later than December 20, 2012;

b. The applicant and the respondents will immediately deliver to the other party a witness list (which should include the name of any applicant who intends to testify) 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. The witness list and the will-say statements of each witness must be filed with the Tribunal no later than December 20, 2012; and

c. The applicant will immediately confirm whether she is prepared to confine her evidence to the issues and allegations made in the Application, in which case the Application will serve as her will-say statements. The applicant must confirm with the Tribunal whether she intends to confine her evidence to the Application no later than December 20, 2012.

9In the event that the parties do not comply with the Directions in this Interim Decision, this may limit the ability of a party to call a witness or rely on a document during the course of the hearing in accordance with the Tribunal’s Rules. If the applicant does not comply with the directions in this Interim Decision then the Tribunal may deem the applicant to have abandoned the Application.

10The parties are advised of the Tribunal’s mediation/adjudication process set out in Rule 15A of the Tribunal’s Rules of Procedure. The Tribunal will offer this process at the commencement of the hearing on January 7, 2013. If both parties agree, the hearing will commence with mediation. If the parties do not consent to mediation/adjudication, the hearing on the merits will commence on January 7, 2013.