Artan Mucollari v. Il Gabbiano Ristorante / 1196811 Ontario Ltd., 2013 HRTO 409

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Artan Mucollari Applicant

-and-

Il Gabbiano Ristorante /1196811 Ontario Ltd. Respondent

INTERIM DECISION

Adjudicator: Yasmeena Mohamed Date: March 11, 2013 Citation: 2013 HRTO 409 Indexed as: Mucollari v. Il Gabbiano Ristorante

WRITTEN SUBMISSIONS

Artan Mucollari, Applicant ) Self-represented Il Gabbiano Ristorante/ ) Self-represented 1196811 Ontario Ltd., Respondent ) )

INTRODUCTION

1This is an Application made pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”), alleging discrimination in employment on the basis of race, ethnic origin, place of origin and record of offences.

2This Interim Decision addresses the respondent’s request for a thirty (30) day adjournment of the hearing currently scheduled for March 25 and 26, 2013.

BACKGROUND

3On July 27, 2012, the Human Rights Tribunal of Ontario (“Tribunal”) mailed a Notice of Confirmation of Hearing (“NCH”) to the parties. The NCH expressly notified the parties of the following:

(a) The hearing of the Application was scheduled to be heard on March 25 and 26, 2013;

(b) Any adjournment requests submitted 14 days after receipt of the NCH would be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments;

(c) The Tribunal’s Practice Direction is available on the Tribunal’s website; and

(d) Any documents that the parties intended to rely upon at the hearing, including witness lists and summaries of witness’ statements, had to be filed with the Tribunal by February 8, 2013.

RESPONDENT’S ADJOURNMENT REQUEST

4On March 4, 2013, the respondent, by email to the Registrar of the Tribunal, requested a 30 day adjournment of the currently scheduled March 25 and 26, 2013 hearing dates and a copy of the Application, Response from the Applicant and the Notice of the Hearing (“Tribunal documents”).

5The reasons advanced by the respondent for the 30-day adjournment request and a copy of the Tribunal’s documents, included, but were not limited to, the following:

(a) On January 20, 2013, the respondent’s motor vehicle was broken into and vandalized;

(b) The respondent’s briefcase containing all the file materials, document briefs and witness statements (“respondent’s documents”), as well as other personal information and belongings, were stolen from his motor vehicle;

(c) The documents have not been recovered to date;

(d) Without the respondent’s documents, the respondent was unable to comply with the February 8, 2013 deadline, and is unable to proceed with the upcoming hearings scheduled on March 25 and 26, 2013.

(e) A copy of the Tribunal’s documents will enable the respondent to reproduce his prior work/response in preparation for the hearing in this matter.

6The respondent provided no particulars with respect to the nature or scope of documents that may have been lost.

THE APPLICANT’S RESPONSE

7On March 4, 2013, the Applicant, by email to the Registrar of the Tribunal, objected to the Respondent’s request for a 30-day adjournment. The Applicant submitted that the Respondent should be required to substantiate his request for an adjournment, by producing the police and/or insurance records of the alleged vandalism and theft of the respondent’s documents.

THE TRIBUNAL’S PRACTICE DIRECTION WITH RESPECT TO ADJOURNMENTS

8The Tribunal’s Practice Direction on requests to adjourn or reschedule provides as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request re-scheduling of a Hearing, described above. Requests for adjournments, particularly at the last minute, are 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.

9In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained the reasons for its position on adjournments as follows:

The Tribunal is committed to be 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 interest 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 (5), [now] fourteen (14) days, 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 (5) days that they are unavailable, and providing that requests for adjournments will not be otherwise granted, absent exceptional circumstances.

DECISION

10On the basis of the Tribunal’s Practice Direction on adjournments, the issue before me is whether the alleged vandalism and theft of the respondent’s documents constitute exceptional circumstances, warranting an adjournment.

11A review of the chronology set out above is instructive. On July 27, 2012, the Tribunal mailed the NCH to the respondent, notifying the respondent of the scheduled March 25 and 26, 2013 hearing dates. On January 20, 2013, (approximately six months after the NCH was mailed to the respondent) the respondent’s motor vehicle was allegedly vandalized and his documents were stolen. On February 8, 2013, the respondent was required to file with the Tribunal any documents he intended to rely upon at the scheduled hearing, including witness lists and summaries of witness’ statements. A review of the Tribunal’s records indicated that the Respondent did not file any of the said documents or before February 8, 2013, nor did the Tribunal receive any explanation for the respondent’s failure to meet the February 8, 2013 filing deadline. On March 4, 2013, (approximately eight months after the NCH was mailed notice to the Respondent and six weeks after the alleged vandalism and theft of documents) the respondent requested an adjournment of the scheduled March 25 and 26, 2013 hearing dates.

12The respondent has provided no evidence in support of the adjournment request. However, even assuming that there is evidence to substantiate the basis for the adjournment request, the chronology of events above clearly indicates that the respondent delayed his adjournment request on the grounds of the alleged vandalism and theft by approximately six weeks. This delay is further aggravated by the fact that the respondent had an opportunity to request an adjournment on the grounds of the alleged vandalism and theft on February 8, 2013, when filing of the respondent’s documents became due, but failed to do so. In addition, the respondent’s March 4, 2013 adjournment request failed to provide any reasons for the six weeks’ delay in reporting the alleged vandalism and theft of documents to the Tribunal.

13Pursuant to the Tribunal’s Practice Direction, the onus to demonstrate exceptional circumstances, warranting an adjournment, lies with the party requesting the adjournment. In this instance, and in consideration of the delayed adjournment request and failure to provide any explanation of the delay, it is my opinion that the respondent has not met the onus of demonstrating exceptional circumstances, warranting an adjournment. Accordingly, the respondent’s 30-day adjournment request is denied.

14In the interest of procedural fairness, the respondent’s request for copies of the Tribunal documents is granted. Accordingly, the Tribunal will send a copy of the Tribunal documents to the respondent, as expeditiously as possible.

15As noted above, the respondent did not provide any particulars with respect to any documents that he may have intended to rely on and which he alleges were lost on January 20, nor has the respondent filed any witness statements or provided any reason why witness statements could not have been reproduced, delivered and filed after the alleged theft.

16The Notice of Confirmation of Hearing summarized the requirements as follows:

Unless otherwise directed by the HRTO, not later than February 8, 2013 you must deliver to every other party and file with the HRTO:

• a list of all documents you intend to rely on at the hearing;

• a copy of each document on that list for the HRTO;

• a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;

• a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;

• a statement summarizing the expected evidence of each witness;

• where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;

• the Statement of Delivery of the Rule 16.2 list and documents on the other parties.

17In 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.

ORDER AND DIRECTIONS

18The respondent’s 30-day adjournment request is denied. The hearing will proceed as scheduled on March 25 and 26, 2013.

19Given my decision that this matter will proceed on the scheduled hearing dates, the respondent is directed to immediately, and in any event no later than March 15, 2013, deliver and file the materials required under Rules 16 and 17. If the respondent is relying on the alleged theft of any material on January 20, 2013 for the delay in filing after the February 8 deadline, he should provide police reports, insurance claims or any other evidence in support of this along with reasons for the further delay in filing beyond February 8, 2013. If there are documents he alleges were stolen, that he intended to rely and that he has not yet been able to reproduce, he must provide detailed particulars of these documents along with the steps he has taken to reproduce the documents. At the outset of the hearing the Tribunal will allow both parties to make submissions on any outstanding evidentiary issues including prejudice, if any, to the applicant of late disclosure of documents or witness statements and any issues arising from any additional documents the respondent has particularized but not yet been able to reproduce. The parties’ attention is also drawn to Rule 5 of the Tribunal’s Rules of Procedure.