HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wenxin (Wendy) Wang
Applicant
-and-
Evertz Microsystems Ltd.
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Wang v. Evertz Microsystems Ltd.
1This is an Application dated October 2, 2012, and 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 race and sex.
2This matter currently is scheduled to proceed to a teleconference hearing on April 8, 2013, commencing at 9:30 a.m. in order to hear oral submissions regarding the respondent’s request to dismiss the Application as an abuse of process, on the basis that the parties through their legal counsel agreed to a settlement of all employment matters, including any claims under the Code.
3The purpose of this Interim Decision is to address the applicant’s request for an adjournment of the teleconference hearing and a request for disclosure of certain documents from the respondent.
Request for adjournment
4On December 7, 2012, the respondent filed its request to dismiss the Application on the basis of a settlement. The respondent’s materials were sent by the Tribunal to the applicant on December 10, 2012, which highlighted the request to dismiss and stated that the applicant was to file her response by January 7, 2013. The applicant filed her response on January 3, 2013.
5By letter dated January 15, 2013, the parties were advised that the matter would be scheduled for a half-day conference call to hear submissions on the request to dismiss.
6By letter dated February 1, 2013, the Tribunal sent a Notice of Confirmation of Hearing to the parties advising that a teleconference hearing had been scheduled for April 8, 2013, commencing at 9:30 a.m. to deal with the respondent’s request to dismiss. In this Notice, the parties were advised that any request for re-scheduling of the teleconference hearing must be made within 14 days of the date of the Notice (or by February 15, 2013). The parties further were advised that any requests for adjournments would be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Re-scheduling Requests, and Requests for Adjournments (“Practice Direction on Adjournments”).
7No request for re-scheduling of the teleconference hearing was received from the applicant by February 15, 2013.
8On March 20, 2013, the applicant sent e-mail correspondence to the Tribunal stating that she needed to re-schedule the teleconference hearing for a date that is two weeks after the currently scheduled date, on the basis that her previous lawyer was away and her new human rights lawyer was just able to talk to her previous lawyer two days earlier. She states that her new lawyer needed more time to prepare her case, and that she was also seeking production of documents from the respondent. The Tribunal does not have any confirmation in its file that the applicant is currently represented by legal counsel.
9By e-mail dated March 21, 2013, the Tribunal asked the respondent to provide its position regarding the applicant’s request for an adjournment. The respondent sent e-mail correspondence dated March 22, 2013 opposing the applicant’s request, on the basis that, in accordance with the Tribunal’s Practice Direction on Adjournments, requests for adjournments outside the 14 day period after receiving a Notice of Hearing are only granted in exceptional circumstances. The respondent’s position is that the applicant’s request does not amount to exceptional circumstances warranting an adjournment, particularly so close to the hearing date. It is noted that the applicant has had a significant amount of time to consult with her previous legal counsel since receiving the Notice of Confirmation of Hearing on February 1, 2013 and the respondent’s request to dismiss in December 2012. The respondent also noted that the applicant has had a significant amount of time to retain new legal counsel since she dismissed her previous lawyer in or around February 27, 2012.
10The applicant replied by e-mail correspondence dated March 22, 2013, stating that she had just gotten a new human rights lawyer from the Human Rights Legal Support Centre (“HRLSC”) two weeks earlier. The Tribunal responded that it did not have any notice that counsel from the HRLSC had been retained to represent the applicant, and asked that notification be provided if new legal counsel had been retained.
11The Tribunal’s Practice Direction on Adjournments provides as follows:
The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, 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. Where the request is on short notice, the party must contact the Registrar by email or fax.
12The applicant has not provided exceptional circumstances sufficient to warrant the adjournment of the teleconference hearing in this matter. While a party has the right to be represented by legal counsel before this Tribunal, a party must act expeditiously to retain legal counsel and, where legal counsel is retained outside the 14-day period following a Notice of Hearing, must retain counsel who is available to attend on the scheduled hearing date.
13In this case, the Tribunal has not yet received notification from legal counsel at the HRLSC or from anywhere else that they have been retained to represent the applicant in this matter. While the applicant previously had been represented by legal counsel in relation to settlement discussions arising from the termination of her employment, she did not indicate on her Application form that this lawyer was representing her in relation to her human rights claim. In my view, the applicant has had ample time to retain legal counsel to represent her for the purpose of the teleconference hearing, which is only dealing with the preliminary issue of whether the applicant, through her previous counsel, agreed to a settlement of her employment claims against the respondent, including her claims under the Code, such that it would be an abuse of process to allow the Application to proceed. Even if, as the applicant asserts, she retained counsel at the HRLSC two weeks prior to her March 22, 2013 e-mail, this would afford counsel a full month to prepare for the teleconference hearing. Further, as dealt with below, the documents requested by the applicant are not relevant to the issue to be addressed at the teleconference hearing, and accordingly do not provide a proper basis to grant an adjournment.
14For these reasons, the applicant’s request for an adjournment of the teleconference hearing is denied, and the hearing will proceed as scheduled on April 8, 2013, commencing at 9:30 a.m.
Request for disclosure
15On March 20, 2013, the applicant filed a Request for Order seeking disclosure from the respondent of her performance review from 2011 and bonus for the applicant. While these documents may be arguably relevant if this matter proceeds on the merits to address the substance of the applicant’s allegations, these documents are not arguably relevant to the sole preliminary issue to be addressed at the teleconference hearing, which is whether the applicant, through her previous counsel, agreed to a settlement of her employment claims against the respondent, including her claims under the Code, such that it would be an abuse of process to allow the Application to proceed.
16Accordingly, the applicant’s request is denied at this time. In the event that this matter proceeds to a full hearing, the parties are obliged under the Rules to make disclosure of all arguably relevant documents and any request for further disclosure may be made by a party after the deadline for such disclosure has passed and they have received and reviewed the disclosure provided.
ORDER
17The Tribunal hereby makes the following order:
a. the applicant’s request for an adjournment of the teleconference hearing is denied, and the hearing will proceed as scheduled on April 8, 2013, commencing at 9:30 a.m.; and
b. the applicant’s request for disclosure of the documents sought in her Request for Order dated March 20, 2013 is denied at this time.
Dated at Toronto, this 25th day of March, 2012.
“Signed by”
Mark Hart
Vice-chair