McMenemy v. Regional Municipality of York, 2012 HRTO 854

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Valerie Laurette McMenemy

Applicant

-and-

Regional Municipality of York, Patricia Richards and Michelle Blunt

Respondents

-and-

Canadian Union of Public Employees, Local 905

Intervenor

Interim DECISION

Adjudicator: Kathleen Martin

Date: April 30, 2012

Citation: 2012 HRTO 854

Indexed as: McMenemy v. Regional Municipality of York

iNTRODUCTION

1This is an Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses the Union’s Request to Intervene and a request for an adjournment made by the applicant.

rEQUEST TO iNTERVENE

2The Application was filed with the Tribunal on November 8, 2010 and alleges discrimination in employment on the basis of disability. Among other things, the applicant alleges that the respondent employer resisted providing her with modified duties and that when returned to work, she was harassed and discriminated against “due to” her disability. As a remedy, the applicant seeks compensation and if she is able, a return to her job on a graduated basis. The applicant states that she was a member of the union during the time she experienced discrimination.

3On February 15, 2011, the union filed a Request to Intervene. The union seeks to intervene on the issue of remedy because the remedy sought may impact on a memorandum of settlement signed by the union and the respondent.

4No party has opposed the union’s Request.

5Based on the material filed and the absence of any opposition, the union’s Request is granted. While it appears that the union only wishes to make submissions on remedy, if the union seeks to rely on any documents or evidence related to the issue of remedy, the union is directed to deliver to the other parties and file with the Tribunal any documents to be relied on, a witness list and summary of each witness’ evidence in accordance with Rules 16 and 17 by May 14, 2012.

6I will address the scope of the union’s participation in the course of the hearing.

Request for Adjournment

7On December 13, 2012, the Tribunal sent the parties a Notice of Confirmation of Hearing. That Notice scheduled the hearing for June 18, 19 and 20, 2012. The Notice provided that requests for adjournment would be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments available on the HRTO’s website. The Notice further warned that if a party is unable to attend the hearing on the dates scheduled, the party needs to act quickly to arrange for re-scheduling since a request for re-scheduling must be done within 14 days of the date of the Notice.

8By email dated March 24, 2012, the applicant’s counsel wrote to the Tribunal indicating that the applicant had now retained a community legal clinic to represent her which is identified. Counsel requests that the dates be adjourned. Counsel states that she is available on the three days scheduled but due to the volume of material she anticipates that the hearing will go more than three days. Counsel states that if the hearing goes longer, she would not be available to continue with the hearing given that she is retiring from the clinic. Counsel states that the director of the clinic, who will be assuming carriage of the file in this eventuality, is unavailable on the scheduled dates and that for her to become counsel after three days of hearing would be prejudicial to the applicant.

9In an email dated April 30, 2012, the applicant’s counsel provides further submissions in support of her request for an adjournment. The applicant renews her request for additional time so that counsel can obtain documents related to the file which appear to be missing from the material she received; determine the status of the grievance; obtain medical evidence; and consider whether amendments are required to the Application.

10The respondent has filed submissions opposing any adjournment given the length of time that the Application has taken to get to the hearing stage.

11The Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Request, and Requests for Adjournments states, in part:

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.

12In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, the Tribunal stated at paras 4 and 5:

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.

13Absent exceptional circumstances, unavailability of counsel has not been viewed as a legitimate reason to grant an adjournment. See for example, Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 at paragraph 6; and Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at paragraph 8.

14In this case, I am not persuaded that the applicant has provided a reason that would justify granting an adjournment. The Notice of Confirmation of Hearing was issued over three months before the request. Further, counsel has indicated that she can attend the dates; her only concern is that the hearing may not be completed in three days. I find this potential prejudice to be speculative at best.

15Further I do not find the applicant’s submissions of today justify any different result. While I can appreciate it is difficult as new counsel to review a file for the purpose of being able to “ascertain all of the issues and evidence related to this case”, the applicant has not identified any compelling reason as to why an adjournment is required. For example, counsel has identified that her client had difficulty responding to her requests for documents. However, counsel notes that Tribunal staff will be providing her with a copy of the entire file which would appear to resolve the issue. Similarly while counsel has identified a need to clarify the status of the grievance and a need to obtain a medical report, she has not suggested that either is unattainable within the time period remaining before the hearing.

16In order to allay counsel’s concern about the length of time it may take to hear this Application, I direct the parties to deliver to each other and file with the Tribunal detailed witness statements setting out the actual evidence each witness will be giving (as opposed to just describing the topics) so that adoption of witness statements make take the place of examination in chief where it is appropriate to do so. Should adoption be appropriate, this may expedite the hearing of any proposed evidence.

17Having regard to the foregoing direction, the parties are granted an extension to May 14, 2012 for delivering to each other and filing their witness statements with the Tribunal.

18The applicant has also expressed an interest in scheduling another mediation. While in the normal course, the Tribunal does not schedule a second day of mediation, should the parties wish to consider mediation, the Tribunal would be able to offer mediation-adjudication on the first day of hearing. A copy of the Tribunal’s mediation-adjudication agreement is attached to this Interim Decision.

Summary of Orders

19The Tribunal orders as follows:

• The union’s Request to Intervene is granted and the style of cause is amended accordingly.

• The union is required to deliver to the parties and file with the Tribunal, any documents to be relied on, a witness list and summary of each witness’ evidence in accordance with Rules 16 and 17 by May 14, 2012.

• The adjournment request is denied. The parties are directed to attend the hearing on June 18, 19 and 20, 2012 and to be prepared to call evidence and make submissions.

• The time for filing witness statements is extended to May 14, 2012. For each proposed a party shall provide a witness statement consisting of a detailed summary of the actual proposed evidence of the witness including reference to the documents the witness shall be referring to in the course of his or her evidence.