Sangineto v. BridgeCo Foods Inc., 2014 HRTO 1554

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicholas Sangineto

Applicant

-and-

BridgeCo Foods Inc.

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: October 17, 2014

Citation: 2014 HRTO 1554

Indexed as: Sangineto v. BridgeCo Foods Inc.

1This is an Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against the applicant with respect to employment, contrary to the Code.

2The Application is scheduled to be heard in Toronto on October 24, 2014.

3This Interim Decision provides reasons for my oral decision of October 14, 2014, denying the applicant’s request for an adjournment of the October 24, 2014 hearing.

4It also addresses the respondent’s request that the Application be dismissed and/or adjourned because of the applicant’s failure to comply with the Tribunal’s Rules and directions regarding pre-hearing disclosure.

5Finally, the decision provides certain directions regarding the conduct of the October 24, 2014 hearing.

APPLICANT’S ADJOURNMENT REQUEST

6On September 16, 2014, the respondent asked the Tribunal to determine, among other things, whether the applicant intended to attend the October 24, 2014 hearing of the Application in Toronto, given that the applicant resides in Quebec. The applicant was copied on the respondent’s September 16, 2014 letter. However, he did not respond by indicating whether he intended to attend the hearing.

7On October 2, 2014, an Assistant Registrar of the Tribunal requested that the applicant confirm whether he was going to attend the October 24, 2014 hearing of his Application. The applicant did not respond to that request.

8On October 7, 2014, I issued a Case Assessment Direction directing that a conference call be convened on October 10, 2014 to clarify, among other things, whether the applicant was going to attend the October 24, 2014 hearing of his Application in Toronto.

9On October 10, 2014, at the applicant’s request, the Tribunal rescheduled the conference call to October 14, 2014.

10On October 14, 2014, I convened the conference call to address, among other things, whether the applicant intended to attend the October 24, 2014 hearing.

11When I asked the applicant during the conference call whether he intended to attend the October 24, 2014 hearing of his Application in Toronto, the applicant stated that he could not attend the hearing because he had to work on October 24, 2014. I explained to the applicant that, although I understood his situation, the hearing would proceed as scheduled, unless he persuaded me that the hearing should be adjourned. The applicant proceeded to request an adjournment of the October 24, 2014 hearing and was given an opportunity to make oral submissions in support of his request.

12In support of his adjournment request, the applicant explained that he had just been hired into a temporary full-time job and he could not get time off to attend the hearing. I asked the applicant if he had requested time off from his employer. The applicant explained that he had not done so because he “thought” he would get fired if he missed a day of work, given that he is a new employee.

13The applicant also asked that the hearing be adjourned because he could not financially afford to attend. The applicant indicated that he needed to work on October 24, 2014 because he needs the money for his living expenses.

14Finally, the applicant indicated that he wanted an adjournment so that he could seek legal advice about his case from the Human Rights Legal Support Centre.

15Having heard the applicant’s submissions, I denied the applicant’s request for an adjournment during the October 14, 2014 conference call. I explained to the applicant on the conference call that the reasons he had provided in support of his request were not extraordinary circumstances justifying an adjournment of the hearing. I indicated that I would provide more fulsome reasons for my decision denying the adjournment in writing. Below are those reasons.

16The May 2014 Notice of Hearing in this matter advised the parties that the hearing would take place in Toronto on October 24, 2014 and that requests for adjournments would be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling.

17As I explained during the October 14, 2014 conference call, according to the Practice Direction, requests for adjournments which are made more than 14 days after the Notice of Hearing is issued, as this one was, will only be granted in extraordinary circumstances. The onus of establishing that extraordinary circumstances exist that warrant an adjournment rests on the party seeking the adjournment.

18In the circumstances of this case, there are no extraordinary circumstances that warrant the adjournment of the hearing.

19The applicant indicates that he cannot attend the hearing because he has to work. However, in many cases, the Tribunal has held that the fact that a party is scheduled to work is not an extraordinary circumstance warranting an adjournment of the hearing: Gagné v. Algoma University, 2011 HRTO 554; Sampson v. Johnson Controls, 2009 HRTO 1684; Cohen v. Synergex Corporation, 2013 HRTO 234. Moreover, the applicant’s belief that his employment would be terminated if he asked his employer to take the day of October 24, 2014 off work is speculative. The applicant did not even ask if it would be possible for him to take time off to attend the hearing. Accordingly, this is not a basis upon which I was prepared to adjourn the hearing.

20Likewise, the applicant’s assertion that he cannot afford to attend the hearing - either because he cannot miss out on a day’s wages or because he cannot afford to travel to the hearing - is not an extraordinary circumstance that justifies the adjournment of the hearing. Presumably, the applicant would have to lose out on wages and incur travel costs whenever the hearing is held. It is not clear and in fact there is nothing before me to indicate that the applicant’s financial circumstances would be different at some later date if the hearing were adjourned for this reason.

21As for the applicant’s submission that he needs an adjournment in order to seek legal advice, the Tribunal has often held that a party’s failure to seek legal advice and/or retain counsel in a timely manner does not constitute an extraordinary circumstance that warrants adjournment of the hearing: Pazhaidam v. North York General Hospital, 2011 HRTO 1663; Davie v. PMA Brethour Real Estate, 2009 HRTO 1198; Wilson v. York (Regional Municipality), 2009 HRTO 2020; Schenk v. OSAD, 2010 HRTO 446; Vallentyne v. Royal Canadian Legion, 2009 HRTO 660.

22For the above reasons, I denied the applicant’s request for an adjournment and advised him that the hearing would proceed as scheduled on October 24, 2014.

23Following my ruling, I asked the applicant to confirm whether he was going to attend the October 24, 2014 hearing. The applicant stated that he had “no comment” and that he wanted to speak to the Human Rights Legal Support Centre.

24However, on the evening of October 16, 2014, the applicant emailed the Tribunal and the respondent indicating that he will be in attendance at the October 24, 2014 hearing.

25In sum, the applicant’s request that the October 24, 2014 hearing be adjourned has been denied. The hearing will proceed as scheduled on October 24, 2014. In the event that the applicant does not attend the hearing at 9:30 a.m. on October 24, 2014 in Toronto, his Application may be dismissed as abandoned.

RESPONDENT’S REQUEST THAT THE APPLICATION BE DISMISSED

26In an October 10, 2014 letter and during the October 14, 2014 conference call in this matter, the respondent asked that the Application be dismissed based on the applicant’s ongoing failure to comply with the Tribunal’s directions and Rules regarding pre-hearing disclosure of documents and witnesses.

27In particular, the respondent notes that the applicant has not provided the respondent and the Tribunal with (1) the documents he intends to rely upon at the hearing; (2) a list of his witnesses; (3) a brief statement summarizing what his witnesses will say when they testify, despite having been directed to do so by the Tribunal in the May 8, 2014 Notice of Hearing and two Case Assessment Directions, dated September 19 and 30, 2014.

28The respondent submitted that the Application should also be dismissed because of the applicant’s failure to confirm that he intended to travel from Quebec for the October 24, 2014 hearing. The respondent pointed out that, even as of the October 14, 2014 conference call, the applicant had still not confirmed that he was going to attend the hearing, notwithstanding that the respondent had raised this issue as early as September 16, 2014 and the Tribunal sought clarification from the applicant in its October 2, 2014 email and during the October 14, 2014 conference call.

29Although I understand the respondent’s frustration with the applicant’s failure to comply with his pre-hearing disclosure requirements, I do not find it appropriate to dismiss the Application on this basis. According to the Tribunal’s Rules, failing to produce documents and witness information in accordance with the Rules does not result in dismissal of the Application (or Response). Under the Tribunal’s Rules, the consequence of failing to comply with the Tribunal’s pre-hearing disclosure requirements is that limits may be placed on the evidence which the defaulting party is permitted to present at the hearing. In particular, Rules 5.6, 16.4 and 17.4 indicate that documents and/or witnesses not properly disclosed in accordance with the Rules may not be admitted into evidence at the hearing, except with the permission of the Tribunal:

5.6. Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

30In the event that the applicant seeks to present documents or witnesses at the hearing that have not been disclosed in accordance with the Tribunal’s Rules, the parties should be prepared to make submissions on whether the applicant ought to be permitted to present such evidence.

RESPONDENT’S ADJOURNMENT REQUEST

31In the event of the Tribunal declining to dismiss the Application, the respondent requested, in the alternative, that the Tribunal adjourn the October 24, 2014 hearing.

32The respondent submits that the applicant’s failure to comply with the Tribunal’s directions has prejudiced its ability to prepare for the October 24, 2014 hearing. In particular, the respondent explained during the October 14, 2014 conference call that it cancelled two preparation meetings with its witnesses, who are students located outside of Toronto, because of the applicant’s failure to comply with his pre-hearing disclosure obligations and especially his failure to confirm that he would be attending the hearing.

33In my view, the circumstances identified by the respondent do not warrant an adjournment of the October 24, 2014 hearing, at least not at this point.

34Assuming without finding that the respondent is not in a position to call its witnesses on October 24, 2014 because of the applicant’s failure to comply with the Tribunal’s directions, this is not a basis upon which to adjourn the entire hearing. In this case, as in the normal course, the applicant will be required to proceed first with the presentation of his evidence on October 24, 2014. If, after the conclusion of the applicant’s case, the respondent feels that it is not in a position to present its evidence, it may request an adjournment at that time.

35In the meantime, the respondent should be as prepared as it reasonably can be to cross-examine the applicant at the upcoming hearing based on the contents of the pleadings.

APPLICANT’S October 14, 2014 EMAIL

36At one point during the October 14, 2014 conference call, the applicant was very disrespectful to the respondent’s counsel. Specifically, the applicant interrupted respondent counsel’s submissions and started yelling at her. When I was able to make myself heard, I told the applicant that such conduct was not tolerable and directed him not to interrupt the respondent’s submissions or to yell at counsel. The applicant complied with that direction at the time. However, after the conference call, on the evening of October 14, 2014, the applicant sent an email which can only be described as abusive. In it, the applicant is extremely discourteous, to say the least, to the Tribunal, the respondent and its counsel.

37In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at para. 9, the Tribunal stated as follows:

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

38This is a warning to the applicant that discourteous and abusive communications of the sort contained in his October 14, 2014 email will not be tolerated. In the event that the applicant persists in this sort of communication, and/or if the applicant continues to fail to comply with the Tribunal’s Rules of Procedure and/or its directions, the Tribunal may dismiss his Application as an abuse of process, pursuant to s.23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22.

DIRECTIONS

39The hearing will proceed on October 24, 2014 as scheduled. On that date, the applicant should be prepared to present all of the evidence that he wishes to place before the Tribunal in support of his Application.

40If the respondent feels that it is not in a position to present its evidence following the conclusion of the applicant’s case, it may seek an adjournment at that point. In the meantime, the respondent should be prepared to cross-examine the applicant at the upcoming hearing based on the contents of the pleadings.

41As the applicant is warned that discourteous and abusive communications of the sort contained in his October 14, 2014 email will not be tolerated. Further, the applicant is required to comply with the Tribunal’s Rules of Procedure and its directions. In the event that the applicant persists in discourteous and/or abusive communication and/or if the applicant continues to fail to comply with the Tribunal’s Rules of Procedure and/or its directions, the Tribunal may dismiss his Application as an abuse of process.