Norrie Brown v. South West Chrysler Dodge Inc., 2013 HRTO 2123

Human Rights Tribunal of Ontario

B E T W E E N:

Norrie Brown Applicant

-and-

South West Chrysler Dodge Inc. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: December 30, 2013 Citation: 2013 HRTO 2123 Indexed as: Brown v. South West Chrysler Dodge Inc.

WRITTEN SUBMISSIONS

Norrie Brown, Applicant Self-represented

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the applicant’s request for an adjournment of the hearing scheduled for January 6 and 7, 2014.

2The applicant’s request for an adjournment is made in an e-mail dated December 24, 2013 on the basis that she is unable to attend the hearing for medical reasons. The applicant provides a letter from her treating physician to the Tribunal dated stating that that it is recommended that the applicant not attend the scheduled hearing due to medical reasons.

3The applicant’s e-mail was copied to the respondent’s counsel. The applicant has not provided a Statement of Delivery (a Form 23) to confirm delivery of this request to the respondent. She has not indicated that she has sought the consent of the respondent to her adjournment request or discussed with the respondent alternative hearing dates as is required by the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. The Tribunal has not received submissions from the respondent in response to the request for an adjournment, recognizing that this request came at the beginning of the holiday period.

DECISION

4The Tribunal’s Confirmation of Hearing Notice states that requests for adjournments will be dealt with according to the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. This Practice Direction provides that requests to reschedule must be made within 14 days of receiving the Notice of Confirmation of Hearing and that the parties need to confer and provide the Tribunal with alternative dates if a rescheduling is being requested. The Practice Direction also states that The Tribunal discourages requests for adjournments outside this 14-day period, noting that later requests for adjournment, particularly ones at the last minute, are a significant impediment to fair and timely access to justice. Consequently, the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the Tribunal will not grant adjournments, even when all parties consent. The Practice Direction also states that where a party seeks to adjourn a scheduled hearing, they must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the hearing.

5In this case, this is the applicant’s second request for an adjournment. I issued an Interim Decision, dated December 10, 2013, denying the first request on the basis that there were no exceptional circumstances because the request was made because the applicant had retained a representative in November, 2013 even though her Notice of Confirmation of Hearing was delivered to her on June 17, 2013.

6On December 19, 2013, following the Interim Decision, the applicant’s representative withdrew.

7The applicant’s e-mail advises that she picked up her documentation from her former representative on December 20, 2013, and found documentation from the respondent’s lawyer that she had not seen and which has caused her much anguish.

8The applicant attended her family doctor on December 24, 2013, who provided a note that states:

I recommend that any hearings or legal proceedings be deferred for 6-8 weeks as she is very distraught over new information received this week.

No details were provided by the applicant.

9I am concerned that the applicant has not confirmed delivery of her adjournment request to the respondent and not, it appears, sought the respondent’s consent to her request nor discussed alternate dates with the respondent. I have considered whether to delay this decision until such time that the applicant takes these steps. I do not know if the respondent opposes the applicant’s request. However, under the circumstances, I am of the view that it would be more helpful to the parties for me to make a decision in this matter now given the short time before the hearing is scheduled to begin.

10The applicant’s request for an adjournment is allowed. The applicant has provided a letter from a doctor to indicate that any hearing should be deferred because the applicant is distraught. I do not find it likely that if the respondent opposed this request that I would deny the applicant’s request to adjourn, given the medical information before me. The request is for a short deferral. I do note that additional facts were disclosed in the respondent’s witness’ statements which may well be to what the applicant is referring, and which could cause her distress.

11The applicant is directed to contact the respondent’s counsel by no later than January 10, 2014, to identify mutually available dates that are within eight to twelve weeks of the original hearing dates. If the parties are unable to identify such dates the Tribunal will set the dates for the hearing without the agreement of the parties.

12If the applicant intends to retain or re-retain a representative, that representative will need to be available within the specified eight to twelve week period. It is unlikely that the Tribunal would grant a further adjournment to the applicant on the basis that the applicant is unable to retain counsel or that counsel is unavailable during this period.

ORDER

13The applicant’s adjournment request is allowed.

14The applicant is directed to contact the respondent’s counsel by no later than January 10, 2014 to identify mutually available dates within eight to twelve weeks of the original hearing dates and to provide this information to the Tribunal.