Parker v. Mississauga (City), 2012 HRTO 2333

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charlene Parker Applicant

-and-

The Corporation of the City of Mississauga, Dara Marcoccia and Rohan Abbey Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: December 12, 2012 Citation: 2012 HRTO 2333 Indexed as: Parker v. Mississauga (City)

WRITTEN SUBMISSIONS

Charlene Parker, Applicant Self-represented

The Corporation of the City of Mississauga and Dara Marcoccia, Respondents Shana French, Counsel

Rohan Abbey, Respondent Veronique Henry, Counsel

Introduction

1This Application was filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on June 8, 2010, and alleges discrimination and harassment on the basis of disability and sex in employment, and reprisal. The applicant's allegations include that she was subjected to a poisoned work environment because of unsubstantiated rumours about her that her employer failed to deal with. The applicant also alleges that she believes her employer's inaction led to her being sexually assaulted by a co-worker when he visited her home to walk their dogs and discuss work-related issues.

2This matter is currently scheduled for a hearing on December 19, 20, and 21, 2012. This Interim Decision addresses a request made by the respondents, The Corporation of the City of Mississauga ("the City") and Dara Marcoccia, with the applicant's consent, that the scheduled hearing dates be adjourned.

ADJOURNMENT REQUEST

3On November 23, 2012, the Tribunal received a letter from the applicant's representative, Mr. Cecil Norman, advising that he was no longer representing the applicant in this matter.

4On November 29, 2012, following receipt of Mr. Norman's November 23, 2012 letter, the City and Ms. Marcoccia requested, with the applicant's consent, that the currently scheduled hearing dates be adjourned to February 2013. They indicated that the applicant advised that she has been in contact with the Human Rights Legal Support Centre ("HRLSC"), and that she is seeking alternate counsel. They explained that the adjournment request was submitted on consent in the interests of allowing the applicant sufficient time to prepare, so that efficient use can be made of the parties', as well as the Tribunal's, time and resources.

5The City and Ms. Marcoccia also indicated in their letter that the applicant filed a workplace grievance which is presently positioned to proceed to arbitration. They indicated they were hopeful that, in addition to facilitating the efficacy of the hearing process, the requested adjournment may also permit the parties time to explore settlement options that might allow for a global resolution of all issues outstanding as between them.

6By letter dated December 6, 2012, the individual respondent, Rohan Abbey, opposes the request for an adjournment. Mr. Abbey submits that the allegations against him personally in this matter are very serious. He submits that the allegations have caused him to suffer significant stigma and embarrassment at work and personally. Mr. Abbey also submits that this is not the applicant's first adjournment request. The Tribunal notes that May 2012 hearing dates were previously adjourned in this matter at a case management conference call on May 1, 2012, after the applicant provided a letter from a doctor indicating that it was in her best interests that the hearing dates be adjourned for medical reasons.

DECISION

7The Tribunal's Notice of Confirmation of Hearing indicates that requests for adjournments will be dealt with in accordance with the Tribunal's Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments ("Practice Direction"). This Practice Direction states that requests to reschedule must be made within 14 days of the date of the Notice of Confirmation of Hearing, and that the Tribunal discourages requests for adjournments outside this 14-day period, noting that requests for adjournment, particularly at the last minute, are a significant impediment to fair and timely access to justice. Consequently, the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative.

8In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal made the following comments regarding adjournment requests:

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.

9In the present case, it is unfortunate that the applicant's representative advised less than a month prior to the start of the hearing that he is no longer representing the applicant. The Application raises a number of issues, some of which appear to be complex legal issues, and the applicant is presently seeking alternate counsel to assist her with the hearing. I also note that the applicant's representative agreed at the May 1, 2012 case management conference call to provide the respondents with requested medical documents, from various sources, related to the applicant's alleged disability. There is no indication that he did so.

10The Tribunal has held that a party's decision to retain counsel after a hearing has been scheduled is not an "extraordinary circumstance" justifying an adjournment simply because counsel is unavailable or unprepared. Nor have decisions to change counsel been generally recognized as an extraordinary circumstance justifying an adjournment. See Valiani v. Canadian Labour Congress, 2011 HRTO 1886 at para. 9. However, in the present case, the applicant was represented by Mr. Norman since the initial filing of the Application and until he advised just recently, on November 23, 2012, that he was no longer representing the applicant. There is no indication that the applicant decided to change representatives at this late stage in the proceedings. Furthermore, while the applicant is not required to have a representative at the hearing, she has been in contact with the HRLSC and is presently seeking alternate counsel.

11The City and Ms. Marcoccia have also indicated that the applicant filed a workplace grievance which is presently positioned to proceed to arbitration, and they are hopeful that an adjournment may permit the parties time to explore settlement options that might allow for a global resolution of issues. While the Tribunal's Practice Direction indicates that the Tribunal discourages the adjournment of hearing dates so that parties can explore settlement, the Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

12While I appreciate the concerns raised by Mr. Abbey in his opposition to the adjournment request, the request is for an adjournment of approximately six weeks, in light of the discontinuation of the applicant's representation, in order for the applicant to obtain new representation and/or prepare for the hearing. The respondents making the adjournment request, on consent of the applicant, have expressed the view that granting the adjournment will allow for an efficient use of the parties' and the Tribunal's time and resources.

13In the circumstances of this Application, and having regard, in particular, to the issues raised by the Application, it is my view that it is appropriate to grant the requested adjournment, and to also seek submissions on whether or not it would be appropriate to defer the Application in light of the applicant's grievance which is positioned to proceed to arbitration. If deferral of the Application is not appropriate, the Tribunal will reschedule the hearing for as soon as possible after February 1, 2013, and the Tribunal may issues further directions and/or schedule a case management conference call.

ORDER

14The request to adjourn the December 19, 20, and 21, 2012 hearing dates, brought by the City and Ms. Marcoccia, on consent of the applicant, is granted.

15Having regard to Rule 14 of the Tribunal's Rules of Practice, the parties and the applicant's union may provide submissions on the issue of whether or not deferral of the Application is appropriate, pending completion of ongoing grievance proceedings, within 14 days of the date of this Interim Decision.

16If deferral of the Application is not appropriate, the Tribunal will reschedule the hearing in this matter for as soon as possible after February 1, 2013.