Hibbert v. Dufferin-Peel Catholic District School Board, 2013 HRTO 1452

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shaunette Hibbert

Applicant

-and-

Dufferin-Peel Catholic District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 1483

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton

Date: August 26, 2013

Citation: 2013 HRTO 1452

Indexed as: Hibbert v. Dufferin-Peel Catholic District School Board

WRITTEN SUBMISSIONS

Shaunette Hibbert, Applicant

Joy Walters, Representative

Dufferin-Peel Catholic District School Board, Respondent

John-Paul Alexandrowicz, Counsel

Canadian Union of Public Employees, Local 1483, Respondent

Devon Paul, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ethnic origin, sex, sexual solicitation, marital status, age, and reprisal. The hearing in this matter is scheduled for September 5, 2013, pursuant to a Notice of Hearing dated February 19, 2013.

adjournment request

2On August 13, the Tribunal received an email from the applicant’s new representative advising that she had been retained to represent the applicant. In an email dated August 16, the applicant’s representative requested that the hearing be adjourned on the basis that the applicant required more time to prepare for the case given her new representative.

3By email dated August 19, the respondent wrote to the Tribunal opposing the adjournment request.

4The applicant sent another email dated August 19 providing more information about her adjournment request. In it, she states that her previous representative withdrew his services on July 29, causing the applicant to feel lost and scrambling to comply with her disclosure requirements. She reiterated her position that she required additional time to prepare for the hearing and submitted that, in her opinion, the witnesses would not be prejudiced by delaying the hearing, although the applicant would be disadvantaged if the adjournment were not granted.

5The intervenor emailed the Tribunal on August 21 advising that it does not take any position with respect to the applicant’s adjournment request.

6The respondent emailed the Tribunal on August 22 repeating its position that the adjournment request should be denied. Further, it submits that the applicant has not advanced any exceptional circumstances in support of her request and it notes that the applicant has complied with her disclosure obligations.

Analysis

7The Tribunal’s Practice Direction on Scheduling states as follows about adjournment requests:

The HRTO discourages requests for adjournment outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournment, 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. When the request is on short notice, the party must contact the Registrar by email or fax.

8As set out in the Practice Direction, and as confirmed in the Tribunal’s decisions, adjournments are only granted in exceptional circumstances. The Tribunal has explained its rationale for taking such positions in a number of cases including 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 proceedings must consider, but the fact that Tribunal time reserved for the resolution of those parties’ disputes 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 [now fourteen] days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of the parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five [now fourteen[ days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

9In this case, while the applicant states that her representative withdrew his services on July 29, has retained a new representative, and now requires additional times to prepare for the hearing, the Tribunal has refused to grant an adjournment if the only basis for the request is that the party has retained counsel, or a representative, shortly before the scheduled hearing. See, for example, Siddall v. St. Clair College of Applied Arts and Technology, 2013 HRTO 444, and Sells v. Kawartha Pine Ridge District School Board, 2013 HRTO 1403.

10I do not see that the applicant’s request is so exceptional that it warrants the hearing being adjourned. Accordingly, the applicant’s request for adjournment is denied.

MEDIATION/ADJUDICATION

11At the hearing on September 5, the Tribunal adjudicator will offer to assist the parties with settlement discussions if the parties are interested in pursuing settlement options. This offer will be made pursuant to the Tribunal’s mediation/adjudication process, described in Rule 15A of the Tribunal’s Rules of Procedure. The main feature of this process is that the parties agree that the adjudicator will continue to adjudicate the Application if the parties do not settle some or all of the issues.

12If the parties are interested in participating in mediation-adjudication, they are to email the Tribunal, copying the other parties, by Tuesday, September 3 at 12:00 p.m.