Peggy Harrypersad v. Peel District School Board, 2013 HRTO 142

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peggy Harrypersad

Applicant

-and-

Peel District School Board

Respondent

Canadian Union of Public Employees, Local 1628

Intervenor

INTERIM DECISION

Adjudicator: David Muir

Date: January 28, 2013

Citation: 2013 HRTO 142

Indexed as: Harrypersad v. Peel District School Board

WRITTEN SUBMISSIONS

Peggy Harrypersad, Applicant

Lata Menon, Counsel

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”), alleging discrimination with respect to employment because of ancestry, colour, creed, ethnic origin, place of origin and race. This Interim Decision deals with a Request for Order During Proceeding (“Request”) filed by the applicant as well as number of issues raised in a Case Assessment Direction I issued on January 18, 2013.

The Request to Adjourn

2On January 22, 2013 the applicant filed a Request for Order During Proceeding seeking the adjournment of the hearing. The applicant states that her recently retained counsel is not available on the scheduled dates and needs more time to review the file.

3The Request is denied.

4The Tribunal’s Practice Direction provides that requests to reschedule must be made within ten days of receiving the Confirmation of Hearing and that thereafter, adjournments will be granted only in extraordinary circumstances. The Practice Direction states the following regarding requests for adjournments:

The HRTO discourages requests for adjournments outside the ten-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, copied to the other parties.

The HRTO typically will not adjourn a hearing date because the parties wish to “engage in settlement discussions” or are “close to a deal.” The HRTO encourages mediation and settlements, and will assist the parties in this regard. Where parties believe they may be able to resolve a matter shortly before the scheduled hearing, they should advise the Registrar and the HRTO may make a mediator and mediation room available. The parties may also request mediation/adjudication in accordance with Rule 15.2.1 (and Rule 8.5 for s. 53(3) and 53(5) applications). However, the HRTO discourages the cancellation or adjournment of hearing dates so that the parties can explore settlement

5The Notice of Confirmation in this case was sent to the parties on June 15, 2012. In my view the reasons for this Request do not constitute exceptional circumstances that would justify an adjournment. When an applicant makes the decision to retain counsel or representative for the hearing it is their responsibility to ensure that the individual they retain is available on the scheduled hearing dates. The applicant has provided no explanation for her failure to do so in this case. As regards the suggestion that more time is required to review the file, in my view, as important as the issues are to the parties this is a relatively simple case related primarily to two job competitions. Counsel was retained on January 16, 2013, the hearing is not until February 12 and 13, 2013. I am not satisfied that there is any basis for a claim that there will have been insufficient time to prepare for the hearing.

The Scope of the proposed evidence

6In her Application the applicant alleges that she has experienced discrimination in employment on the grounds set out above. In particular the applicant alleges that she was not successful in two job competitions- in September 2010 and January 2011. The applicant alleges that when she asked why she was not successful in the first job competition she was not given a “definite answer”. The applicant also alleges that she did not receive a performance evaluation in 2010.

7In an Interim Decision 2012 HRTO, 2291, I dealt with what was characterized by the respondent as an attempt by the applicant to significantly expand the scope of the hearing by the addition of a number of new allegations of systemic discrimination in the respondent Board generally and in the school where the applicant is employed. In the Interim Decision, I confirmed that the issues for resolution were those related to the two job competitions set out in paragraph 2 above. I also allowed the applicant to proceed with an allegation that she has experienced an attempt on the part of the personal respondent to set her up for discipline subsequent to filing this Application.

8As indicated in a CAD issued on January 18, 2013 I directed the applicant to respond to a number of issues I identified with respect to the relevance and/or admissibility of anticipated evidence of a number of her proposed witnesses. The applicant in apparent response to these directions has provided updated will says and has identified three potential witnesses in addition to herself – Mr Ramkissoon, Ms Grant and Ms Huys. Many of the concerns identified in the CAD have been addressed with the new witness list.

9However as I have indicated previously the will say of Janet Huys includes hearsay evidence that the applicant is in a better position to give. It is also indicated that Ms. Huys will offer an opinion that the applicant could perform the duties of the position. Ms Grant is expected to give similar evidence. The need for these witnesses’ evidence can be addressed at the hearing.

10The revised will say of Kris Nankissoon indicates that he is expected to give evidence with respect to his allegedly firsthand knowledge of the applicant’s skills and qualifications as it relates to the job(s) for which the applicant is competing. This proposed evidence appears to be potentially material and relevant to the issues in dispute. He also is expected to give evidence with respect to his working with the applicant on community events in the school. It is not clear how this evidence is relevant to the issues in dispute in this case however this issue can be addressed at the hearing in the event that it arises.

11Finally the applicant has provided a will say for herself. In this will say the applicant makes no reference to her allegation that the individual respondent engaged in a campaign to set her up for discipline subsequent to her filing the Application. In the absence of any particulars of this allegation and no reference to it in the will say it seems to me inappropriate to call on the respondent to respond to this issue. If the applicant is intending to pursue this allegation she is directed to provide particulars of this allegation within 7 days of the date of this Interim Decision.

12I am not seized of this case.