Rudy Rosenberg v. Ombudsman Ontario, 2012 HRTO 279

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rudy Rosenberg

Applicant

-and-

Ombudsman Ontario

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: February 8, 2012

Citation: 2012 HRTO 279

Indexed as: Rosenberg v. Ombudsman Ontario

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”). A summary hearing teleconference is scheduled to take place on February 10, 2012, to hear submissions from the parties as to whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

2On February 6, 2012, the Tribunal was copied on an email exchange between the parties in which the applicant wrote the following message to counsel for the respondent:

I have an untimely and unavoidable inability to be present for the hearing and requesting your cooperation in rescheduling for 12 weeks forward. I do not believe that there is any prejudice to your office being a government entity and look forward to your cooperation in offering consent.

3The respondent communicated its refusal of consent and referenced the fact that the applicant was outside the time frames contemplated by the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournment.

4The applicant then sent a further set of emails to the Tribunal and the respondent in which he accuses counsel for the respondent of “malicious” and “belligerent” behaviour, dealing in bad faith and suggesting that as the respondent does not identify any prejudice to it if the matter is adjourned, his request for an adjournment ought to be granted.

5The Practice Direction on requests to adjourn or reschedule 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.

6In 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

7In this case, there is no consent and in communication sent just four days before the teleconference is scheduled to take place, the applicant has simply indicated that he has “an untimely and unavoidable inability to be present for the hearing”.

8Parties are provided with a time period of 14 days from the Notice of Confirmation of Hearing to provide alternate dates if they are unable to attend the scheduled hearing date. The applicant did not make his request for an adjournment until February 6, 2012, 4 days before the scheduled date. This late request would suggest that the circumstances arose after the expiration of the 14-day period for requesting rescheduling. However, the applicant has described nothing exceptional about the apparently recent “inability to be present”.

9As there is no indication of any exceptional circumstances that warrant the adjournment, it is denied. The teleconference hearing will proceed on the date scheduled.

10I am not seized.