Walton v. Greenestone Clinic Muskoka Inc., 2014 HRTO 17

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Derek Walton Applicant

-and-

Greenestone Clinic Muskoka Inc. Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: January 7, 2014 Citation: 2014 HRTO 17 Indexed as: Walton v. Greenestone Clinic Muskoka Inc.

WRITTEN SUBMISSIONS

Derek Walton, Applicant Kate Sellar, Counsel

Greenestone Clinic Muskoka Inc., Respondent Mark Shapiro, Counsel

Introduction

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”). The 3-day hearing is scheduled to begin February 18, 2014, but the respondent has recently requested an adjournment because his counsel is unable to attend.

request to adjourn

2The Notice of Hearing, which stipulated the hearing dates of February 18 – 20, 2014, and the hearing venue of North Bay, was sent to the parties on August 23, 2013. It advised the parties that any request to reschedule should be made to the Tribunal within 14 days.

3The alleged discrimination occurred in Bala. The applicant’s address is in Bracebridge, his counsel’s is in Toronto, and the respondent’s in Thornhill. It would appear that all of the parties and counsel would need to make lodging arrangements if the hearing were to proceed in North Bay. The Tribunal emailed the parties on December 20, 2013, asking if they would be agreeable to the hearing proceeding in Toronto instead of North Bay.

4On January 4, 2014, counsel for the respondent, a Toronto law firm not previously on record, emailed the Tribunal, stating:

Please be advised that we have been retained on behalf of the Respondent in this matter. We are agreeable to the hearing being conducted in Toronto, but are unavailable during the week of February 18^th. We would propose rescheduling to a hearing in Toronto on mutually convenient date(s) in March, 2014.

5The applicant, through his counsel, emailed an objection to the adjournment of the hearing, arguing that the respondent has not cited any exceptional circumstances to justify an adjournment, and noting that counsel for the applicant has no dates available until August 2014. Counsel for the applicant wrote:

The Applicant will be prepared to proceed at the scheduled hearing in February in North Bay and expects the same of the Respondent.

6According to the Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments”, requests for adjournments which are made outside the ordinary time limit for rescheduling requests, as this one is, will only be granted in extraordinary circumstances. The onus of establishing that extraordinary circumstances exist rests on the party seeking the adjournment.

7The respondent’s request to adjourn stems from its failure to retain available counsel after the hearing was scheduled. The respondent has been aware of the February 2014 hearing dates since the summer of 2013, and could have retained counsel who was available for the hearing dates. The Tribunal has often held that a party’s failure to retain counsel in a timely manner does not constitute an extraordinary circumstance justifying an adjournment of the hearing, including when counsel is unavailable on the scheduled date: Mackin v. Houselink Community Homes, 2013 HRTO 541; 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.

8In the circumstances of this case, I am not persuaded that extraordinary circumstances exist which warrant the adjournment of the hearing. I therefore deny the respondent’s adjournment request. The 3-day hearing shall remain scheduled for February 18 - 20, 2014.

directions

9The applicant does not appear to have agreed to the Tribunal’s suggestion that the venue of the hearing be changed to Toronto, but the respondent did. I note that the distance between Toronto and the place where the alleged discrimination occurred, Bala, is only 4 kilometres more than the distance between Bala and North Bay. Given this negligible difference, and given the addresses of the parties and their counsel, I direct that the venue of the hearing be changed to Toronto. The Tribunal will send to the parties a new Notice of Hearing indicating the Toronto address for the hearing, and confirming that the dates shall remain February 18 – 20, 2014.