Haines v. 2150844 Ontario Inc., 2013 HRTO 1329

Human Rights Tribunal of Ontario

B E T W E E N:

Margaret Lucille Haines Applicant

-and-

2150844 Ontario Inc. o/a HCB Canada, Michael Blakely, Carole Ruddach and Dawn Boyle Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta Date: July 30, 2013 Citation: 2013 HRTO 1329 Indexed as: Haines v. 2150844 Ontario Inc.

Introduction

1The purpose of this Interim Decision is to address a request for an adjournment made by one of the respondents in this Application and to alert the respondents to the fact that they have failed to comply with the obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing.

Failure of the Respondents to Comply with Rules 16 and 17

2A Notice of Confirmation of Hearing dated February 28, 2013, confirmed that this Application would be heard over a two-day period on August 6 and 7, 2013, in St. Catharines, Ontario.

3On March 14, 2013, the Tribunal received a witness list and documents that the applicant intended to rely upon, along with a Form 23, confirming that she had served the materials to the respondents’ representative.

4On June 24, 2013, the Tribunal received a request for an extension of time to file documents and witness statements from the respondents’ representative. The Tribunal granted the extension request and directed that the respondents file their materials by July 12, 2013. No witness statements or additional documents have been filed with the Tribunal by the respondents.

5In C.D. v. Wal-Mart Canada, 2010 HRTO 426, the Tribunal explained, at para. 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore 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, including an applicant or individual respondent. 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 or individual respondent.

6The respondents are directed to immediately file the materials required under Rules 16 and 17, and if the respondents have not done so by August 2, 2013, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.

Adjournment Request

7On July 29, 2013, the Tribunal received an email from respondent Blakely with the following text:

I, the respondent in this case, am requesting that the hearing set for August 6th and 7th for this case be re-schedules to a later date.

All documents that will be relied upon for each respondent had a deadline of July 12th to be delivered to each respective party. The documents that are to be relied upon for this case, from the applicant, were not received by the respondent until Wednesday July 24th, 2013. Michael Blakely, the primary respondent in this case, was out of the office until Monday July 29th, 2013. As such, has only been able to start reviewing the documents at this time. This leaves only 5 business days until the scheduled hearing and as such, the respondent is requesting that it be allowed adequate time to review the documents presented.

The respondent is requesting that it find an alternative date for this hearing after August 19th (as the respondent is away the week of August 12th).

If you have any questions or concerns, please do not hesitate to contact me at the numbers listed below.

8The Notice of Confirmation of Hearing states that requests for adjournments will be dealt with according to the Tribunal’s “Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments”. The Information Bulletin provides that requests to reschedule must be made within five days of receiving the Confirmation of Hearing, and goes on to state the following regarding requests for adjournment:

Requests for adjournment, particularly last minute requests for adjournments are a significant impediment to fair and timely access to justice. The Tribunal’s approach to scheduling and rescheduling mediations and hearings is designed to give the parties a fair opportunity to find suitable dates. Therefore, the Tribunal discourages adjournment requests, and will only grant adjournments in extraordinary circumstances such as the illness of a party, witness or representative.

The Tribunal will not automatically grant adjournments even when all parties consent. Consent of all parties will be a factor which the Tribunal will consider where a request to adjourn a mediation or hearing is made, but it is not the only, or even the main factor.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. If practical, they should contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing. Alternative dates for mediation must fall within five (5) months of the date of the Notice of Application. Alternative dates for a hearing must fall within five (5) months of the date of the Confirmation of Hearing.

The party making the request should contact the Registrar and provide the reason for the request and the alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by telephone or email.

9In 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.

10The Tribunal has held that a party’s decision to change their representative after the hearing has been scheduled, witnesses’ unavailability due to vacation, and requiring more time to prepare are not “extraordinary circumstances” justifying an adjournment. (See, for example, Vallentyne, supra, Khan v. Toronto (City), 2009 HRTO 820, and Knibbs v. Brant Artillery Gunners Club, 2009 HRTO 1601.)

11The reasons this respondent has cited in support of his request do not amount to extraordinary circumstances justifying the granting of an adjournment a week before the hearing is scheduled to begin.

12The respondents have had ample opportunity to prepare their case and there is no indication that they did not have sufficient notice of the hearing date. Further, while respondent Blakely indicates that he did not receive the applicant’s documents until July 24, 2013, I note that the Tribunal received those documents in March 2013. Accordingly, the request for adjournment is denied. The hearing will proceed as scheduled.

13The respondents are directed to immediately file the materials required under Rules 16 and 17, and if the respondents have not done so by August 2, 2013, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.