Smith v. Far Investment Inc., 2012 HRTO 545

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janet Smith Applicant

• and-

Far Investment Inc. Respondent

INTERIM decision

Adjudicator: Kathleen Martin Date: March 15, 2012 Citation: 2012 HRTO 545 Indexed as: Smith v. Far Investment Inc.

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").

2On February 15, 2012, the Tribunal issued an Interim Decision denying a request for an adjournment brought by the respondent because their legal representatives were unavailable: 2012 HRTO 326. The respondent sought another adjournment because of the unavailability of a witness. On February 24, 2012, the Tribunal issued a Case Assessment Direction seeking submissions on this request. Submissions have been received.

3The respondent states that its primary witness is out of the country from March 16, 2012 to March 31, 2012. The respondent states that the witness is on a medical leave from work and attaches a doctor's note dated February 21, 2012, which confirms that the witness has chronic medical problems and that the doctor has recommended that she take time off work "at regular intervals to help address those issues". The doctor states that he strongly advises that she follow through with her time off in March.

4The respondent submits that granting an adjournment would accommodate the witness and be consistent with the Tribunal's Policy on Accessibility and Accommodation (the "Policy"). Further, the respondent states that the reason provided by the applicant – having made other arrangements with her witnesses - does not constitute undue hardship.

5The respondent requests an adjournment of all of the dates, or in the alternative, that the Application proceed with an alternative date being sought for the hearing of the witness's evidence. The respondent also refers to the possibility of having the witness testify by telephone although it suggests this would not address the underlying reason for the accommodation of her medical condition.

6The applicant opposes the request because she has already made arrangements including for the accommodation of her witnesses. While the applicant appears to accept that the respondent's witness has medical issues, she notes that the hearing dates have been set since November 10, 2011 and the witness had ample time to go on vacation previously, which I presume refers to the witness's absence out of the country.

7As set out in the initial Interim Decision, the Tribunal's Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments states that the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative.

8In this case, on the basis of the material filed and submissions made, I do not find it appropriate to grant an adjournment of all of the dates. Even if I accept that one of the respondent's witnesses is unable to attend, this does not impede the hearing of the other witnesses which have been identified.

9Further, I find based on the material filed, it is unclear if the timing of the medical leave was recommended by the doctor and if that leave prevents the witness from participating in a legal proceeding. In the circumstances and given the proximity of the hearing, I find it appropriate to receive additional submissions at the outset of the hearing before determining when and in what manner the witness in question will be heard.

10In the circumstances, I order as follows:

1. The adjournment request is denied. The hearing dates of March 21, 22 and 23, 2012 remain scheduled.

2. The parties may make any further submissions at the outset of the hearing on the respondent's request that the Tribunal accommodate its witness. In this respect, the respondent should be prepared to address why the request is being made now given that the hearing was scheduled since November 10, 2011; and whether the witness is able to participate in a legal proceeding whether in person, by teleconference or videoconference, and if she is, at what time and date can she participate.

3. If the parties intend to rely on any additional facts, documents or case law not already filed in support of their respective positions on the respondent's request, the parties shall deliver the same to each other and file the material with the Tribunal by March 20, 2012.

11Given that I will address the respondent's request at the outset of the hearing and the applicant is required to proceed first with her witnesses, the witness at issue does not need to be in attendance on the first day of hearing.

12I note that the parties did not participate in mediation. A copy of the Tribunal's Mediation/Adjudication Agreement is attached to this Interim Decision should the parties wish to consider participating in this process.