Ashuk Yankarran v. Osram Sylvania Ltd., 2013 HRTO 1529

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashuk Yankarran

Applicant

-and-

Osram Sylvania Ltd.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 12, 2013

Citation: 2013 HRTO 1529

Indexed as: Yankarran v. Osram Sylvania Ltd.

WRITTEN SUBMISSIONS

Osram Sylvania Ltd., Respondent

Carolyn Ursulak, Counsel

Introduction

1The applicant filed an Application alleging that the respondent discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H-19 (the “Code”). Specifically, he alleged that the respondent failed to meet its duty to accommodate under the Code and terminated his employment because of his disability. This Interim Decision deals with the respondent’s request for an adjournment. It also confirms that Kris Amaral is removed as a personal respondent to the Application.

2The hearing in this case is scheduled for October 23 and 24, 2013. On September 11, 2013, the respondent requested an adjournment of the hearing because its key witness, Kris Amaral, is currently on disability leave. The respondent also argues that Ms. Amaral is a key member of the management team responsible for giving instructions in the case.

3The respondent advised that the applicant did not consent to the adjournment.

4As set out in the Tribunal’s Practice Direction on Scheduling, and as confirmed in the Tribunal’s caselaw, adjournments are only granted in exceptional circumstances. The Tribunal explained its rationale for this approach in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660::

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.

5I find that the reasons provided by the respondents’ representative for the adjournment do not constitute exceptional circumstances that warrant an adjournment in this case. First, although the respondent’s witness is on disability leave, the respondent has submitted no evidence to show that the witness is medically incapable of providing testimony in the case. See Blakely v. Queen’s University, 2011 HRTO 891. In any event, the applicant will proceed first with his evidence in the case. It is more than likely that opening statements and the applicant’s evidence may take up the majority of the first day, if not longer. The respondent’s other witness can then provide evidence either on the first day or, more likely, on the second hearing day. The Tribunal can schedule further hearing days as required in the event that Ms. Amaral is indeed medically incapable of testifying. As well, I note that Ms. Amaral is only one member of the management team providing instructions to the respondent’s counsel. Therefore I see no prejudice to the respondent of proceeding in the manner described above.

6For all of the above reasons the respondent’s adjournment request is denied.

Removal of Kris Amaral as personal respondent

7At the mediation of this matter, the parties agreed to the removal of Kris Amaral as a personal respondent. Ms. Amaral is the corporate respondent’s human resources manager. In light of the parties’ agreement, the Tribunal confirms that Ms. Amaral has been removed as a personal respondent.

ORder

8The Tribunal orders as follows:

a. The respondent’s adjournment request is denied.

b. Kris Amaral is removed as a personal respondent to the Application and the style of cause shall be amended accordingly.