Jaques v. 1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar, 2014 HRTO 1195

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Joslyn Jaques

Applicant

-and-

1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar

Respondent

INTERIM DECISION

Adjudicator: Daniel Randazzo

Date: August 8, 2014

Citation: 2014 HRTO 1195

Indexed as: Jaques v. 1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar

WRITTEN SUBMISSIONS

Michelle Joslyn Jaques, Applicant

Chantal Tie, Counsel

1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar, Respondent

Haley Rooney, Representative

1This Interim Decision is issued in anticipation of the hearing in this matter, which is scheduled for August 12, 2014.

2On July 31, 2014 the applicant filed two Requests for Order During Proceedings (“RFOP”) seeking to have a witness testify by teleconference and seeking an order adding an individual as a personal respondent.

3On August 6, 2014 the respondent filed an RFOP seeking to adjourn the August 12, 2014 hearing; and seeking an extension of time to file documents the respondent intends to rely upon. The respondent also opposes the applicant’s request to have a witness testify by teleconference.

Request to have witness testify by teleconference

4The applicant’s request to have a witness testify by teleconference is denied. Although there are occasions where the Tribunal has allowed an individual to testify by teleconference, upon review of the intended evidence it is apparent the evidence will be controversial and potentially prejudicial. Furthermore, the probative value of the evidence may be significantly impacted by potential credibility issues. Finally, as the respondent has indicated, the evidence relates to a conversation which may be the product of settlement discussions. Prior to the witness testifying I will want to hear submissions on the circumstances surrounding the conversation and whether the evidence is a product of settlement discussion.

Request to add an individual as a personal respondent

5The respondent has not had an opportunity to fully respond to the applicant’s request to add an individual as a personal respondent. This request will be dealt with at the hearing on August 12, 2014.

Request to adjourn the hearing

6The respondent’s request to adjourn the hearing is denied. The respondent has indicated that they seek the adjournment to allow the respondent proper time to digest the new evidence and orders requested, obtain copies of the documents destroyed by the fire, retain counsel, if necessary, and submit the documents it intends to rely on at the hearing.

7The Tribunal’s Practice Direction on Scheduling provides that requests to reschedule must be made within fourteen (14) days of receiving the Confirmation of Hearing and that thereafter, adjournments will be granted only in extraordinary circumstances. The Practice Direction states the following regarding requests for adjournments:

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.

The HRTO typically will not adjourn a hearing date because the parties wish to “engage in settlement discussions” or are “close to a deal.” The HRTO encourages mediation and settlements, and will assist the parties in this regard. Where parties believe they may be able to resolve a matter shortly before the scheduled hearing, they may request mediation/adjudication in accordance with Rule 15A (and Rule 8A and 17A for s. 53(3) and s. 53(5) applications). However, the HRTO discourages the cancellation or adjournment of hearing dates so that the parties can explore settlement.

8The reasons for the request to adjourn do not constitute exceptional circumstances that would permit an adjournment. The respondent will have an opportunity to address the applicant’s request to add a personal respondent at the hearing on August 12, 2014. It is not clear from the respondent’s correspondence what new evidence has been produced. Any prejudice arising from the late production of documents, including the disclosure of any new documents previously thought to be destroyed by fire can be dealt with at the hearing.

Request extension of time to file hearing documents

9The respondent’s request for an extension of time to file their hearing documents is granted. I note that the respondent’s email of June 30, 2014 which was resent on August 8, 2014 contained a number of documents, list of witnesses and witness statements. The respondent will be allowed to rely upon these documents. Any prejudice caused by the late disclosure and filing of these materials may be addressed at the hearing.

10The hearing will proceed as scheduled on August 12, 2014. It is likely that this matter will take more than one day to complete and as such the applicant, if she chooses, may arrange to call Ms. McNeilly on the second or following days.