Norrie Brown v. South West Chrysler Dodge Inc., 2013 HRTO 2049

HUMAN RIGHTS TRIBUNAL OF ONTARIO

BETWEEN:

Norrie Brown Applicant

-and-

South West Chrysler Dodge Inc. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: December 10, 2013 Citation: 2013 HRTO 2049 Indexed as: Brown v. South West Chrysler Dodge Inc.

WRITTEN SUBMISSIONS

Norrie Lee Brown, Applicant Patricia Gordon, Representative

South West Chrysler Dodge Inc., Respondent Andrew Camman, Counsel

Introduction

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 because of sex.

2This Interim Decision addresses the parties' Requests for Orders During Proceedings ("RFOP"):

a. The respondent's October 23, 2013 RFOP requesting particulars of the applicant's allegations;

b. The applicant's October 29, 2013 RFOP seeking to amend her claims for monetary compensation and requesting disclosure of arguably relevant documents and to provide additional disclosure;

c. The applicant's December 4, 2013 RFOP requesting an adjournment of the hearing and an extension of time to respond to the respondent's RFOP.

Request for Particulars/Applicant's Request for Additional Time to Respond

3The applicant's response to the respondent's RFOP was initially due November 6, 2013. She was granted an extension of time to respond until November 19, 2013 and a further extension to November 27, 2013. The fact that the applicant recently retained a representative is not determinative of the request. The Notice of Hearing was sent on June 17, 2013 and the applicant has had sufficient time to retain a representative before now. She provides no other reason in support for her third extension of time. There is no other explanation for the failure to provide the requested particulars and, in the circumstances, the applicant's third request for additional time to respond to the RFOP is refused.

4In reviewing the Application, the applicant has made many allegations that appear to have no relation to a Code ground. The Tribunal has no jurisdiction to adjudicate general claims of unfairness or harassment. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27. There must be a connection between the allegation of unfairness and/or harassment and a ground under the Code. In the absence of such a connection, no violation of the Code can be found. The burden of proving that a prohibited ground was a factor in the respondent's actions lies with the applicant, on a balance of probabilities.

5In this case, the applicant has claimed discrimination on the basis of sex. The Tribunal orders that the applicant provide particulars with respect to the paragraphs set out in paragraph 1 of Schedule A of the respondent's October 23, 2013 RFOP (Form 10) including her allegations with respect to any link to a Code ground.

Amendments to the Application

6The applicant has requested that she be allowed to amend her Application to include a claim for wage loss of $100,000 and a claim for $25,000 for injury to dignity, feelings and self-respect.

7It is open to the applicant to make a request for an appropriate award of compensation at the hearing and therefore the request to amend her Application is granted. There is no prejudice to the respondent.

Applicant's Request for Disclosure of Arguably Relevant Documents

8The respondent provided documents with its response to the applicant's RFOP. If the applicant believes there are arguably relevant documents that have not been disclosed, she can request production of those.

Applicant's Request to Add a Document to her Arguably Relevant Documents

9The Tribunal addressed this request in its CAD of November 19, 2013 and therefore makes no order.

Adjournment of the Hearing

10The applicant requests that the hearing set for January 6 and 7, 2014 be adjourned to March, 2014.

11The 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.

12As 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.

13In this case, while the applicant just retained a representative and wants time 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.

14I do not see the applicant's request as exceptional and it does not warrant the hearing being adjourned. The Notice of Hearing was sent out on June 17, 2013 and the applicant took no steps to retain a representative until December, 2013. Accordingly, the applicant's request for adjournment is denied.

Order

15The Tribunal orders:

a. That the applicant provide particulars of her claim as requested in paragraph 1 of the respondent's Schedule A to its RFOP dated October 23, 2013, within 7 days of the date of this Interim Decision;

b. That the respondent deliver and file with the Tribunal any additional Response to the particulars within 7 days of its receipt of those particulars;

c. The Application is amended to include a claim for wage loss of $100,000 and a claim for injury to dignity, feelings and self-respect of $25,000;

d. The hearing will proceed as scheduled on January 6 and 7, 2014.