HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nandram Kissoon
Applicant
-and-
Canada Catering Cleaning and Tom Hurst
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Kissoon v. Canada Catering Cleaning
WRITTEN SUBMISSIONS
Nandram Kissoon, Applicant
Self-represented
Canada Catering Cleaning and Tom Hurst, Respondents
Rita Bairos, Representative
Introduction
1By Application dated June 2, 2010, the applicant alleges that he was discriminated against with respect to employment because of race and colour. This Interim Decision deals with the respondents’ request for an adjournment and the parties’ failure to make the disclosure required by Rules 16 and 17 of the Tribunal's Rules of Procedure.
REQUEST TO ADJOURN
2The hearing in this case has already had to be rescheduled twice, at least once at the respondents’ request. The Tribunal sent the parties a Notice of Confirmation of Hearing on May 3, 2012, re-scheduling the hearing for March 4-6, 2013. By e-mail dated May 8, 2012, the respondents’ representative confirmed the respondent’s availability for the rescheduled hearing dates.
3In a communication dated January 31, 2013, the respondents’ representative requests an adjournment of the March 4-6, 2013 hearing. She provided the following reasons for the adjournment: witnesses have been ill with the flu and therefore have not been able to properly prepare for the hearing; the corporate respondent’s president, who is a key witness, will be on vacation; and the corporate respondent has merged with another company and the new company’s human resources representatives have not had a chance to review the documents relating to the case. As of the date of this Interim Decision, the Tribunal has not received any response to this request for an adjournment from the applicant.
4The Confirmation of Hearing Notice 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.
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, while the illness of a party or witness may constitute an exceptional circumstance in some cases, I find that it does not justify granting the adjournment in this case. The respondents have known of the hearing dates for this case since May 2012. Therefore, they have had ample time to prepare their witnesses for the hearing. In addition, these witnesses still have approximately a month to prepare until the hearing is held in March 2013.
6Second, the corporate respondent’s president has known of the hearing dates in this case since May 2012. He is to be a key witness in the case, he could have planned his vacation to ensure that it did not conflict with the hearing dates.
7Third, I do not accept the respondents’ claim that the hearing should be adjourned because the new company’s human resources representatives have not yet had a chance to review the documents relating to the case. The hearing is still approximately one month away. In my view, this is ample time for the new human resources representatives to review the necessary documentation relating to this case.
8As I have noted, the Tribunal has not, as yet, received a response from the applicant to the respondents’ adjournment request. However, I do not need to know whether the applicant opposes the respondents’ request or not in this instance. As noted in Vallentyne v. Royal Canada Legion, 2009 HRTO 660, at para. 4:
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.
9For all of the above reasons the respondents’ request is denied.
Disclosure of documents and witness statements
10The parties have failed to comply with the obligations under Rules 16 and 17 of the Tribunal's Rules of Procedure to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the parties intend to rely upon at the hearing. The Notice of Confirmation of Hearing set January 18, 2013 as the date by which each party was required to comply with their disclosure obligations under Rules 16 and 17 of the Tribunal's Rules of Procedure. Neither party has to date filed the required documentation. As set out at the end of this section, there are serious consequences for the case if the parties do not comply with the disclosure obligations set out in Rules 16 and 17.
11In 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.
12The applicant and the respondents are directed to immediately file the materials required under Rules 16 and 17. If the applicant has not done so within 7 days of the date of this Interim Decision, the Application may be dismissed as abandoned. If the respondents do not file the required materials within 7 days of the date of this Interim Decision, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondents to call any witnesses at the hearing.
Dated at Toronto, this 6th day of February, 2013.
”signed by”
Jo-Anne Pickel
Vice-chair