Kostrikov v. York Condominium Corporation #201, 2012 HRTO 458

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Serguei Kostrikov

Applicant

-and-

York Condominium Corporation #201

Respondent

interim decision

Adjudicator: Mary Truemner

Date: March 5,, 2012

Citation: 2012 HRTO 458

Indexed as: Kostrikov v. York Condominium Corporation #201

APPEARANCES

Serguei Kostrikov, Applicant ) Niiti Simmonds, Counsel

York Condominium Corporation #201, ) Bradley Chaplick, Counsel

Respondent )

1This Interim Decision provides reasons for my oral decision during a preliminary hearing by way of teleconference on March 2, 2012, denying the applicant’s request to adjourn the hearing scheduled to begin on April 2, 2012.

BACKGROUND

2Hearing documents were to have been filed by February 17, 2012 pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, but on February 15, 2012, counsel for the applicant requested an adjournment of the hearing and an extension for the filing of documents. On the same day, tribunal staff requested more details to support the request to adjourn the hearing, and advised the parties that the date for filing and exchanging hearing documents was extended to March 9, 2012.

3A Case Assessment Direction dated February 21, 2012 (the “CAD”) advised the parties that the adjournment request would be heard by teleconference on March 2, 2012, and that the date for filing and exchanging hearing documents was extended to March 16, 2012. At the teleconference hearing on March 2, 2012, the parties agreed that a deadline of March 16, 2012 instead of March 9, 2012 would be helpful, and the Tribunal hereby confirms that the date for filing and exchanging hearing documents is now March 16, 2012

PARTIES’ REASONS FOR REQUESTING AN ADJOURNMENT

4In written and oral submissions, counsel for the applicant pointed to the fact that her firm was only recently retained as well as to the delayed exchange and filing of documents as a reason for needing more time to prepare for the hearing. She also argues that an adjournment would result in a higher likelihood that the parties will have the time to settle the Application.

5The respondent consents to the request. Counsel for the respondent agrees that an adjournment would facilitate resolving the Application through settlement. He also argued that it was only in December 2011 that the applicant provided sufficient particulars for the respondent to understand the allegations, and that it was only in January 2012, soon after the applicant retained counsel, that a real opportunity to settle the Application arose. He also has some concerns that the upcoming week-long school break, “the March break”, might pose a problem for him to locate and interview witnesses. He could not, however, confirm whether any of the respondent’s witnesses would be taking a vacation during the March break or if they might be difficult to locate because of it. Counsel for the respondent argues that adjourning the hearing would save the Tribunal’s resources in the case that it might settle.

ANALYSIS AND REFUSAL

6The Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments” 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.

The HRTO typically will not adjourn a hearing date because the parties wish to “engage in settlement discussions” or are “close to a deal.” The HRTO encourages mediation and settlements, and will assist the parties in this regard. Where parties believe they may be able to resolve a matter shortly before the scheduled hearing, they should advise the Registrar and the HRTO may make a mediator and mediation room available. The parties may also request mediation/adjudication in accordance with Rule 15.2.1 (and Rule 8.5 for s. 53(3) and 53(5) applications). However, the HRTO discourages the cancellation or adjournment of hearing dates so that the parties can explore settlement.

7In Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 at para. 6, the Tribunal held:

The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for an adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled.

8The Tribunal’s Practice Directions and caselaw are clear that adjournments will be granted only in exceptional circumstances. More time to engage in settlement discussions is not such a circumstance, as specifically noted in the Practice Direction, and the parties’ reasons for wishing the adjournment in so far as they relate to more time to explore settlement possibilities can therefore not justify an adjournment.

9With respect to the applicant’s late retention of counsel, the Tribunal sent confirmation to the applicant on November 10, 2011 that the hearing was to proceed on April 2, 2012. He has had ample time to retain counsel who would be ready for that date. I note that, in fact, he did retain counsel well in advance of the hearing because his counsel filed confirmation on January 16, 2012 that the applicant’s arguably relevant documents were served upon the respondent on December 13, 2011 in accordance with the Tribunal’s Rules of Procedure. The applicant’s counsel has had months to prepare for what will probably be a one-day hearing, and she has confirmed that she and her client will be ready to proceed on that day. I therefore do not find that the applicant has established that retaining counsel at least three months in advance of the hearing constitutes an exceptional circumstance justifying an adjournment.

10With respect to the respondent’s position, counsel argues that the Application only “took shape” late in 2011. I note that the Tribunal’s Interim Decision, issued on May 19, 2011, summarized the applicant’s allegations after a summary hearing, and required the applicant to file further particulars which he did in June 2011. I therefore do not agree that the Application only took shape late in 2011. The respondent has known the allegations and particulars long enough to prepare its case.

11Given that the respondent does not actually have a witness who it knows is unavailable prior to the hearing, the respondent’s fear that the March break might hinder its preparation of witnesses is not an exceptional circumstance to justify an adjournment.

12In summary, the parties’ excuses for not being as prepared for the hearing as they would like, are not sufficient to meet the high standard for adjournment requests set by the Tribunal’s Practice Direction and its jurisprudence. See Knibbs v. Brant Artillery Gunners Club, 2009 HRTO 1601 and Paris v. The Elizabeth Fry Society of Ottawa, 2012 HRTO 164.

13There remains almost one month before the one-day hearing. The adjournment request is denied and the parties must be prepared to proceed with their witnesses at the hearing as scheduled.