Human Rights Tribunal of Ontario
BETWEEN:
Mehtap Gumusay Applicant
-and-
ASG Security Group Ltd. Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané Date: August 16, 2013 Citation: 2013 HRTO 1410 Indexed as: Gumusay v. ASG Security Group Ltd.
WRITTEN SUBMISSIONS
Mehtap Gumusay, Applicant Self-represented
ASG Security Group Ltd., Respondent Laura Karabulut, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment. The matter is scheduled for hearing in Toronto on September 9, 2013.
2This Interim Decision addresses a number of case management issues including, a Request for an Order during Proceedings, which was filed on May 21, 2013 and the respondent's Request for an adjournment.
Request for Order
3The applicant's Request for order simply states "related issues. might add the parties". There is no other information and the other parties are not identified.
4In light of the applicant's failure to provide any further information, the Request for order is denied.
Request to adjourn
5In support of its Request to adjourn the respondent submits that two of its key witnesses are not available to attend the scheduled hearing. Though the Tribunal requested that the applicant provide her position on the Request to adjourn by August 15, 2013 she did not provide a response.
6The Practice Direction on requests to adjourn or reschedule 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.
7In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:
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.
8As there are no exceptional circumstances that warrant the adjournment, the Tribunal denies the adjournment request. Though two of the respondent's witnesses are not available there are a number of other witnesses who are available to testify on that day, including the applicant. In these circumstances it is not appropriate to grant an adjournment of the hearing.
The Rules
9Having reviewed the materials it is not clear to me that the parties have exchanged their arguably relevant documents or that they have filed the documents that they intend to rely on at the hearing. Further the applicant has not provided fulsome will-say statements and she has not responded to a number of correspondences that were sent to her by the respondent and the Tribunal.
10The parties are directed to the Tribunal's Rules of Procedure, which state as follows:
16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,
b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.
16.2 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of documents upon which the party intends to rely; and
b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.
16.3 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:
a) a list of documents upon which the party intends to rely; and
b) a copy of each document contained on the list.
16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.
17.1 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.
17.2 The witness list must include a brief statement summarizing each witness' expected evidence.
17.3 A copy of an expert witness' written report, or full summary of proposed evidence, and curriculum vitae must accompany the witness list.
17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.
11In C.D. v. Wal-Mart Canada, 2010 HRTO 426 ("Wal-Mart"), 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.
Order
12The Tribunal Orders the following:
a. The applicant's Request for order filed on May 22, 2013, is denied.
b. The respondent's Request to adjourn is denied;
c. Within 7 days of the date of this Interim Decision the applicant must deliver to the respondent and file with the Tribunal the following:
i. Written confirmation that she intends to proceed with the Application and that she will attend the Hearing scheduled on September 9, 2013;
ii. Written confirmation that she has delivered to the respondent all arguably relevant documents in her possession;
iii. All documents that she intends to rely on at the hearing;
iv. A witness list with a detailed summary of her witnesses anticipated evidence. The applicant's witness statement should include full particulars of the allegations including, dates and times and the names of the individual involved;
d. Within 7 days of the date of this Interim Decision the respondent must deliver to the applicant and file with the Tribunal the following:
i. Written confirmation that it has delivered to the applicant all arguably relevant documents in its possession; and
ii. All documents that it intends to rely on at the hearing.
13In the event that the applicant does not comply with the orders in this Interim Decision then the Application may be dismissed as abandoned. In the event that the respondent does not comply with the orders in this Interim Decision, this may limit the ability of the respondent to call a witness or rely on a document during the course of the hearing in accordance with the Tribunal's Rules.
Dated at Toronto, this 16th day of August, 2013.
"Signed By"
Geneviève Debané Vice-chair