Errol Kinch v. Georgy Porgy Bar and Grill and Mike Veriniotis, 2012 HRTO 359

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Errol Kinch

Applicant

-and-

Georgy Porgy Bar and Grill and Mike Veriniotis

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: February 21, 2012

Citation: 2012 HRTO 359

Indexed as: Kinch v. Georgy Porgy Bar and Grill

1This Interim Decision deals with a request from the respondents for an adjournment of a hearing scheduled for April 16, 17 and 18, 2012.

REQUEST TO ADJOURN

2The respondents’ counsel has requested, in a letter dated February 13, 2012, an adjournment of the hearing on the basis that two of the respondents’ witnesses will be on vacation outside of the country during the scheduled hearing dates. The respondents’ counsel requests a short adjournment until any date after April 23, 2012. Alternatively, the respondents’ counsel asks that the hearing commence on April 16, 2012 at which time a further date for the completion of the hearing would be determined in order to accommodate the evidence of the two unavailable witnesses. The applicant has not responded to this adjournment request.

3In Vallentyne v. Royal Canada Legion, 2009 HRTO 660, at para. 4, the Tribunal stated as follows:

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 those 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.

4The Tribunal has held that a witness’ unavailability due to vacation is not “extraordinary circumstances” justifying an adjournment. See, for example, Iqbal v. Inscape Corporation, 2009 HRTO 934; Smith v. Ford Motor, 2009 HRTO 1569 and Silk v. Matthews, 2012 HRTO 37.

5The respondents’ request for an adjournment of the scheduled hearing is denied. I have not been satisfied that the unavailability of the two identified witnesses constitutes an exceptional circumstance. It would not be fair, just or expeditious to adjourn the hearing.

6I also do not grant the respondents’ alternative request that the hearing proceed only on April 16, 2012 and that further hearing dates be considered at that time. The parties should arrive at the scheduled three day hearing prepared to proceed with the entirety of their case.

7I will leave it open to the respondents to make oral submissions at the hearing regarding why the evidence of these witnesses would be necessary and whether it is appropriate, in the circumstances, to hold an additional day of hearing. The applicant will also have an opportunity to make oral submissions on this issue.

8It is my further understanding that the respondents potentially wish to call a large number of witnesses. The respondents are reminded that they are required to meet the requirements of Rule 17 of the Tribunal’s Rules of Procedure that require that parties file a list of intended witnesses and a brief statement summarizing each witness’ intended testimony. The Tribunal may also decide under its Rule 1.7 what testimony it will hear and whether it is necessary to hear from a particular witness.