HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ruben Alijohn
Applicant
-and-
Spectra Aluminum Products
Respondent
INTERIM DECISION
Adjudicator: Sheri D. Price
Indexed as: Alijohn v. Spectra Aluminum Products
1In this Application, filed on December 15, 2010, under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondent discriminated against him on the basis of disability, race, colour and age with respect to employment, and reprised against him contrary to the Code.
2The hearing is scheduled to take place on April 30 and May 1, 2012.
3This Interim Decision addresses the applicant’s request that the April 30 and May 1, 2012 hearing dates in this matter be adjourned, as well as the parties’ failure to comply with the Tribunal’s Rules of Procedure regarding pre-hearing disclosure.
ADJOURNMENT
4By letter dated March 15, 2012, the applicant requests that the April 30 and May 1, 2012 hearing dates in this matter be adjourned to the end of August 2012. The stated basis for the applicant’s adjournment request is that the applicant is “still seeking help from a lawyer.” In his March 15, 2012 letter, the applicant also asks that the deadline for pre-hearing disclosure of the documents he intends to rely upon at the hearing and his witness statements be extended to August 2012.
5The Notice of Confirmation of Hearing in this matter, advising the parties that the hearing of the Application would take place on April 30 and May 1, 2012, was mailed to the applicant on November 18, 2011, more than five months before the commencement of the hearing.
6That Notice advised the parties that requests for adjournments would be dealt with in accordance with the Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments”, which states in relevant part:
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.
7The Tribunal has often held that a party’s failure to retain counsel in a timely manner does not constitute an extraordinary circumstance that warrants adjournment of the hearing, including when counsel is unavailable or unprepared to proceed on the scheduled date: Pazhaidam v. North York General Hospital, 2011 HRTO 1663; Davie v. PMA Brethour Real Estate, 2009 HRTO 1198; Wilson v. York (Regional Municipality), 2009 HRTO 2020; Schenk v. OSAD, 2010 HRTO 446; Vallentyne v. Royal Canadian Legion, 2009 HRTO 660.
8In this case, the basis for the applicant’s adjournment request is that the applicant is “still” seeking help from a lawyer. (The applicant previously wrote to the Tribunal on December 7, 2011, stating that he was trying to get a lawyer.) In my view, however, the applicant has already had ample opportunity to retain legal counsel to represent him in this matter. In this regard, the Tribunal notes that the applicant’s former legal counsel wrote to the Tribunal in July 2011 to indicate that she was no longer representing the applicant in this matter. If the applicant wished to retain other counsel to represent him in this matter, he could have begun making efforts to do so at least as early as July 2011. Alternatively, and as noted above, the applicant has had approximately four months since the Notice of Confirmation of Hearing was sent to him to retain legal counsel to represent him at the upcoming hearing of the Application. In the circumstances, the applicant has failed to establish that his request for an adjournment is due to extraordinary circumstances as opposed to his own failure to retain counsel in in a timely manner. The applicant’s request for an adjournment is denied accordingly. The hearing will proceed as scheduled on April 30 and May 1, 2012.
9The applicant’s request for an extension of the deadline for the pre-hearing disclosure of his documents and witness statements is similarly denied. Given that the hearing is proceeding in less than six weeks, it is important that the applicant comply with his pre-hearing disclosure requirements as soon as possible to ensure that the respondent is aware of the case it has to meet at the hearing of the Application. The parties’ pre-hearing disclosure obligations are dealt with in further detail below.
PARTIES’ FAILURE TO COMPLY WITH PRE-HEARING DISCLOSURE REQUIREMENTS
10Pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure (the “Rules”), the parties were obliged to exchange with one another and to file with the Tribunal no later than 45 days before the first scheduled day of hearing (i.e. by no later than March 16, 2012) their witness lists, witness statements, and copies of the documents they intend to rely upon at the hearing of this matter. The November 18, 2011 Notice of Confirmation of Hearing which was sent to the parties summarized the parties’ requirements as follows:
Unless otherwise directed by the HRTO, not later than March 16, 2012 you must deliver to every other party and file with the HRTO:
a list of all documents you intends to rely on at the hearing;
a copy of each document on that list for the HRTO;
a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;
a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;
a statement summarizing the expected evidence of each witness;
where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;
the Statement of Delivery of the Rule 16.2 list and documents on the other parties.
11The deadline for the exchange and filing of witness lists, witness statements and the documents upon which the parties intend to rely at the hearing has now passed, and neither the applicant nor the respondent has complied with the Tribunal’s Rules regarding pre-hearing disclosure.
12In particular, the applicant who, as noted above, requested on March 15, 2012, that the March 16, 2012 deadline for pre-hearing disclosure be extended, has not provided the Tribunal or the respondent with the documents he intends to rely upon at the hearing of the Application (if any), nor has he provided a list of the witnesses he intends to have testify at the hearing or statements summarizing his witnesses’ anticipated evidence (i.e. “will-say statements”).
13The respondent appears to have provided copies of its arguably relevant documents to the applicant as required by Rule 16.1 of the Tribunal’s Rules of Procedure. However, the respondent has failed to file with the Tribunal and to deliver to the applicant copies of the documents it intends to rely upon at the hearing of this Application, a list of its witnesses and a statement summarizing each of the respondent’s witnesses’ anticipated evidence.
14The exchange of documents and witness statements prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the case to be met and also enables the Tribunal to ensure that the Application may be resolved in a fair, just and expeditious manner. As set out below, there are serious consequences for this case if either or both parties fail to comply with the Tribunal’s Rules.
DIRECTION
15The applicant is directed to immediately deliver to the respondent and file with the Tribunal the materials required under Rules 16 and 17 of the Tribunal’s Rules of Procedure. If the applicant has not complied with this direction within seven (7) days of the date of this Interim Decision, the Application may be dismissed by the Tribunal as abandoned.
16The respondent is also directed to immediately deliver to the applicant and to file with the Tribunal the materials required under Rules 16 and 17. If the respondent have not done so within seven (7) days of the date of this Interim Decision, the Tribunal may take any or all of the steps in Rule 5 of the Tribunal’s Rules of Procedure, including not permitting the respondent to present witnesses or documents at the hearing of the Application.
17In preparing their witness statements, both parties are reminded that witness statements should be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness who may be called to testify, including the applicant. However, where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant. In the case of the corporate respondent, it would also need to identify the individual who will attest to the facts contained in the Response.
18The Tribunal’s Rules of Procedure Governing Part IV Applications are available on its website at www.hrto.ca.
Dated at Toronto, this 20th day of March, 2012.
“Signed by”
Sheri D. Price
Vice-chair