Cohen v. Synergex Corporation, 2013 HRTO 234

Human Rights Tribunal of Ontario

B E T W E E N:

Nathaniel Cohen

Applicant

-and-

Synergex Corporation

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: February 8, 2013

Citation: 2013 HRTO 234

Indexed as: Cohen v. Synergex Corporation

1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended ("the Code"). The Application is scheduled to be heard on February 22, 2013, in Toronto.

REQUEST FOR ADJOURNMENT

2On February 5, 2013, the Tribunal received an email from the applicant requesting that the February 22, 2013 hearing in this matter be adjourned. The stated reason for the request is that the applicant is out of the country, in Israel, and is unable to travel to Canada to attend the hearing for financial and work-related reasons. The applicant asks that the hearing be adjourned to a date agreeable to all parties so that he can "look into the possibility of coming to Canada to attend the hearing." The applicant's adjournment request follows the Tribunal's denial of his request to participate in the hearing of this matter by telephone: 2013 HRTO 164.

3The respondent opposes the applicant's request for an adjournment, saying that it has already made plans for it and its witness to attend the February 22, 2013 hearing.

ANALYSIS AND DECISION

4The June 2012 Notice of Confirmation of Hearing in this matter advised the parties that the hearing would take place in Toronto on February 22, 2013 and that requests for adjournments would be dealt with in accordance with the Tribunal's "Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments".

5According to the Practice Direction, to which I directed the applicant during a January 24, 2013 conference call in this matter, requests for adjournments which are made outside the ordinary time limit for rescheduling requests, as this one is, will only be granted in extraordinary circumstances. The onus of establishing that extraordinary circumstances exist that warrant an adjournment rests on the party seeking the adjournment.

6In the circumstances of this case, the applicant has not established that there are extraordinary circumstances that warrant the adjournment of the hearing.

7The applicant submits that he would incur certain financial costs in order to travel to the hearing. However, since the applicant would presumably have to incur certain those costs to travel to the hearing whenever it is held, I do not see how this factor weighs in favour of an adjournment. There is no reason to conclude that the applicant's financial ability to travel to Canada would be affected one way or the other by an adjournment of the hearing. The applicant also indicates that he cannot attend the hearing for "work-related" reasons, which I take to mean that the applicant would have to take time off work in order to attend the hearing. Again, this is not an extraordinary circumstance warranting an adjournment of the hearing. Most parties, and their witnesses, are required to absent themselves from work in order to attend hearings before the Tribunal. The fact that the applicant has to work is not a reason to adjourn the hearing, particularly since the applicant would presumably have to take time off work to attend the hearing whenever it is held, and it is not clear how holding the hearing at a later date would make any difference. I would note that my decision in this regard is consistent with other decisions of the Tribunal where having to travel to Ontario and/or take time off work have been found not to be the sort of circumstances justifying an adjournment of a hearing: Gagné v. Algoma University, 2011 HRTO 554; Sampson v. Johnson Controls, 2009 HRTO 1684.

8Another factor that weighs against granting the applicant's adjournment request is that the applicant is not even sure that he will attend the hearing if it is adjourned to a later date. On the contrary, the applicant seeks to adjourn the hearing to a later date so that he may use the time to consider whether he wishes to pursue his Application, given that he is required to travel to Canada for the hearing. In my view, it would not be appropriate to adjourn a hearing before the Tribunal because the applicant is not sure that he wants to proceed with it, which is basically what granting the applicant's request would entail.

9Finally, to the extent that the applicant relies upon the Tribunal's recent denial of his request to participate in the hearing of this matter by telephone as part of the reason that his adjournment request should be granted, I cannot agree. As I made clear in my December 2012 and January 2013 Case Assessment Directions in this matter, and my January 30, 2013 Interim Decision denying the request to participate by phone, electronic hearings on the merits of Applications before the Tribunal are the exception, not the rule. The applicant was certainly entitled to pursue his request for an electronic hearing. However, it was not reasonable for him to make plans regarding the hearing on the assumption that the request would be granted. The applicant was advised in the June 2012 Notice of Confirmation of Hearing that he was required to attend the merits hearing in person and he should have made plans to attend the hearing on that basis, unless and until he was advised otherwise. Also, in a January 16, 2013 Case Assessment Direction in this matter, issued while the applicant's request to participate in the hearing by telephone was still outstanding, I specifically advised the applicant that unless and until the Tribunal granted his request, he continued to be required to attend the February 22, 2013 hearing in person and should be prepared to do so.

10For all of the above reasons, the applicant's request for an adjournment is denied. The hearing will proceed as scheduled on February 22, 2013 and the applicant should make arrangements to attend the hearing in person on that date.

DIRECTIONS

11The applicant's request that the February 22, 2013 hearing be adjourned is denied.

12The hearing will proceed as scheduled on February 22, 2013 and the applicant should make arrangements to attend the hearing in person on that date.

13The applicant is directed to confirm to the Tribunal and the respondent in writing by no later than February 19, 2013 that he will be in attendance at the hearing on February 22, 2013. If such confirmation is not received, the Tribunal may consider the applicant to have abandoned the Application and dismiss it accordingly.