Kissoon v. Canada Catering Cleaning, 2013 HRTO 356

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

Date: March 1, 2013

Citation: 2013 HRTO 356

Indexed As: Kissoon v. Canada Catering Cleaning

Introduction

1This Interim Decision addresses the applicant’s request for an adjournment as well as the union’s request to intervene in this case.

2The hearing in this matter is scheduled to commence on Monday, March 4, 2013. In the late afternoon of February 28, 2013, the applicant requested that the hearing be adjourned. In his letter, he states that he had sent certain documents to the Human Rights Legal Support Centre (“Centre”) and that there was a “mix up” at their end as they said they had not received some of the documents. The applicant claims that he was in regular contact with the Centre and was not advised of the mix up until two weeks ago. He states that he was in contact with the Centre over the past two weeks and was just notified that the Centre has no one available to assist him at the hearing. The applicant requests an adjournment of approximately six months in order to resend his documents to the Centre and to seek assistance elsewhere if the Centre will not represent him.

3The respondents’ representative opposes the applicant’s request on the basis that the Application was filed over two years ago and many extensions have already been granted to the applicant. The respondents’ representative submits that the applicant has had sufficient time to seek legal assistance. She states that the respondents have already made arrangements to have all of their witnesses attend the hearing on Monday.

4By Interim Decision dated February 6, 2013, the Tribunal denied a request for adjournment filed by the respondents.

5The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments provides that requests to reschedule must be made within 14 days of receiving the Confirmation of Hearing and that outside that time adjournments will be granted only in extraordinary circumstances. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at paragraph 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 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 these 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.

6In my view, the circumstances described by the applicant do not amount to exceptional circumstances that warrant an adjournment. The Tribunal does not require parties to have legal representation and self-representation is common before the Tribunal. The Tribunal has denied requests for adjournment in situations similar to the present in a number of cases. See, for example, Alibhai v. Aditya Birla Minacs Worldwide Inc., 2012 HRTO 1833, and Rastel v. Dryden Police Services Board, 2011 HRTO 1974.

7The applicant received the Notice of Hearing, dated May 3, 2012, which advises that the parties must take prompt action if they wish to re-schedule hearing dates. However, the applicant made his adjournment request only a few days prior to the first scheduled hearing date. With greater diligence, the applicant could have become aware of the apparent mix up with the Centre earlier. As well, he has failed to provide any reason why he delayed until February 28, 2013, to seek an adjournment if he became aware of the mix up with the Centre two weeks ago. In all the circumstances of this case, adjourning the hearing would not be a fair, just or expeditious outcome.

8The request to adjourn the hearing is denied; the hearing shall proceed as scheduled.

union’s request to intervene

9By Request dated December 2, 2010, the applicant’s union, the Health Care and Service Workers union Local 304 affiliated with the Christian Labour Association of Canada, requested observer status and a right to make submissions on matters that impact the bargaining unit. The Tribunal grants this request for observer status and will provide the union a right to make submission if any matters arise that have an impact on the bargaining unit.