Mitchell v. Commercial Babcock Inc., 2013 HRTO 528

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alwyn Mitchell

Applicant

-and-

Commercial Babcock Inc.

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: March 28, 2013

Citation: 2013 HRTO 528

Indexed as: Mitchell v. Commercial Babcock Inc.

WRITTEN SUBMISSIONS

Alwyn Mitchell, Applicant

Harry Kopyto, Representative

Commercial Babcock Inc., Respondent

Holly Reid, Counsel

Introduction

1This Application is scheduled to proceed to a hearing on April 9-11, 2013. On March 21, 2013, counsel for the respondent requested an adjournment of the hearing because she is unable to attend due to certain medical issues. She advised further that it has been recommended that she not participate in the hearing in April as scheduled.

2On March 28, 2013, the applicant’s representative provided his response to the adjournment request. While he does not consent or oppose the request, he submits “there should be reliable information presented in support of the adjournment indicating that a medical practitioner has directed that counsel for the responding party cannot or should not proceed with the hearing for medical reasons”.

3In my view, the respondent’s legal counsel is an officer of the court and is not required to provide medical documentation to support her request. The issue is whether an adjournment should be granted when a party’s counsel or representative is unable to attend a hearing for medical reasons.

4The Tribunal’s practice is to grant adjournments only in exceptional circumstances. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why 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.

DECISION

5In my view, the circumstances presented constitute the exceptional circumstances required to grant the adjournment. On March 21, 2013, the respondent’s legal counsel advised the Tribunal she was unable to attend the hearing scheduled for April 9-11, 2013 for medical reasons. She advised the Tribunal that the medical issues that she was experiencing were recent and that she has had carriage of the case and has been solely responsible preparing the case for hearing. The late request for the adjournment was due to the fact that the medical issues being experienced by counsel were very recent.

6The respondent’s request for an adjournment is granted, with the following directions:

a) the hearing dates scheduled for April 9-11, 2013 are cancelled;

b) within ten (10) days of the date of this Interim Decision, the parties are to advise the Tribunal of their availability for rescheduled hearing dates.