Denise Yenson v. Ontario Lottery and Gaming Corporation, 2014 HRTO 1220

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denise Yenson

Applicant

-and-

Ontario Lottery and Gaming Corporation

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: August 15, 2014 Citation: 2014 HRTO 1220 Indexed as: Yenson v. Ontario Lottery and Gaming Corporation

WRITTEN SUBMISSIONS

Denise Yenson, Applicant Jean-Rodrigue, Counsel

Ontario Lottery and Gaming Corporation, Respondent Amy Tibble, Counsel

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Essentially, she believes that the respondent’s decision to terminate her employment was at least in part because they failed to accommodate absences she alleges were caused by her disability.

denial of adjournment request

2Pursuant to a Notice of Hearing issued on April 2, 2014, the hearing is scheduled for September 25 and 26, 2014. The applicant requested an adjournment on July 30, 2014, stating that she has been having difficulties obtaining missing documents from her medical file without which her case “cannot proceed”. While she has already delivered to the respondent the majority of the documents she is required to share under the Tribunal’s Rules of Procedure, and while she has already filed the documents on which she intends to rely at the hearing, the applicant does not expect to produce the missing medical documents until after August 17, 2014.

3The respondent consents to the request to adjourn because if it receives the missing medical documents after August 17, 2014, it believes that it will not have sufficient time to review and prepare its case.

4According to the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, requests to reschedule must be made within 14 days of receiving the Notice of Confirmation of Hearing. Outside this 14-day period, the Tribunal will only grant adjournments in extraordinary or exceptional circumstances such as illness of a party, witness or representative.

5The Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states, in part:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a 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.

6The circumstances raised by the applicant in this case are not, in my view, exceptional. The request to adjourn the first day of the hearing is denied given that any prejudice to the respondent with respect to any late production of missing medical documents may be addressed, if need be, by adjourning the hearing after the applicant has testified in chief.

7The parties have filed their witness statements and documents upon which they intend to rely at the hearing pursuant to the Tribunal’s Rules. Should the applicant file further medical documents prior to the hearing, then the respondent must file in response any documents or amendments to its witness statements as soon as possible.

mediation-adjudication and request to amend

8Mediation-adjudication will be offered at the commencement of the hearing, pursuant to Rule 15A of the Tribunal’s Rules. If the parties do not agree to participate in mediation-adjudication, or if it does not resolve the Application, then the Tribunal will deal with any outstanding requests.

9In particular, the applicant has provided details in her witness statement with respect to her efforts to meet the respondent’s demands for medical documentation substantiating her absences. It appears that the parties consider these details to amount to an amendment to the Application, an amendment which the respondent opposes.

10The Tribunal shall deal at the commencement of the hearing with the issue of whether the applicant may testify as suggested by her witness statement which includes details not provided in the Application.

attendance on the first day of hearing

11The applicant must be prepared to testify on the first day of the hearing, but no other witnesses need attend the first day.